ON THE GROUND:
40B Developments
Before and After
Tufts University
DeGenova I Goodwin I Moriarty I Robitaille
ON THE GROUND:
40B Developments Before and After
Prepared by: Alexandra DeGenova I Brendan Goodwin I Shannon Moriarty I Jeremy Robitaille
Tufts University I Urban and Environmental Policy and Planning I Field Projects
Prepared for: Citizens’ Housing and Planning Association I May 1, 2009
School of Arts
and Sciences
ON THE GROUND: 40B Controversies Before and After
Table of Contents
Table of Contents
Acknowledgements
Abstract
Executive Summary
i
iii
iv
v
Chapter 1: Project Overview
Study Hypothesis
40B Leislation Overview
Controversies
Methodology
1
1
1
2
3
Chapter 2: Walpole
Community Profile
The Preserve
On the Ground: Before
On the Ground: After
Walpole Conclusion
9
9
10
11
13
18
Chapter 3: Newton
Community Profile
The Kayla’s House Development
On the Ground: Before
On the Ground: After
Newton Conclusion
21
21
21
22
27
31
Chapter 4: Wellesley
Community Profile
Hastings Village
On the Ground: Before
On the Ground: After
Wellesley Conclusion
35
35
36
38
44
47
Chapter 5: Weston
Community Profile
Dickson Meadow
On the Ground: Before
51
51
51
52
ON THE GROUND: 40B Controversies Before and After i
Table of Contents
Chapter 5: Weston
On the Ground: After
Weston Conclusion
Conclusion
Appendices
Appendix A: HAC Review
Appendix B: Literature Review
Appendix C: Further Research
Appendix D: List of Interviewees
Bibliography
List of Figures & Tables
1 - Mixed Methodology
2 - Walpole Demographics
3 – Walpole Map
4 – The Preserve Site Map
5 – Walpole Controversy Summary
6 – Newton Demographics
7 – Newton Map
8 – Kayla’s House Site Map
9 – Newton Controversy Summary
10 – Wellesley Demographics
11 - Wellesley Map
12 – Hastings Village Site Map
13 – Wellesley Controversies Summary
14 – Weston Demographics
15 – Weston Map
16 – Weston Controversies Summary
17 – HAC Process
ii
ON THE GROUND: 40B Controversies Before and After
(continued)
56
60
63
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69
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79
4
10
11
12
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25
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Acknowledgements
This report is a result of the input, assistance and guidance of countless individuals. We
are particularly indebted to the following people and organizations:
First and foremost, we would like to thank our client, Citizens’ Housing and Planning
Association (CHAPA) for commissioning this report. In particular, we are especially
grateful to Karen Wiener, Aaron Gornstein, Janna Tetreault and Ann Verilli for their
enthusiasm and generous guidance for this study and for their dedication and commitment
to affordable housing in Massachusetts.
We would like to extend our gratitude to Professor Lynn Fisher of the Department of
Urban Studies and Planning at MIT and Werner Lohe, Chairman of the Massachusetts
Housing Appeals Committee for their assistance and advice in determining our case
studies.
We are deeply appreciative to all of the individuals we interviewed for this report, of
which there are too many to name here. Their thoughtful input is the foundation of this
report. Additionally, we would like to thank the various individuals on staff at the Zoning
Board of Appeals and other offices at the Towns of Weston, Walpole, Wellesley and the
City of Newton for their assistance in our document reviews.
Finally, we would like to thank our Tufts University instruction team: Professors Rachel
G. Bratt and Robert H. Russell and Teaching Assistants Chrissy Ungaro and Holly Elwell.
This project would not have been possible without their wisdom, input and guidance.
ON THE GROUND: 40B Controversies Before and After iii
Abstract
The Massachusetts Chapter 40B statute has been in existence for 40 years and allows local
Zoning Boards of Appeals to approve housing developments under flexible zoning rules if
20-25 percent of the units are permanently restricted as affordable. Many 40B developments
have been proposed and built without conflict. Others, however, have encountered
controversy concerning issues of density, environmental concerns, impacts on property
values, safety, traffic and burdens on municipal services, among others. This report examines
four case studies of controversial projects developed under Chapter 40B. It concludes that the
concerns raised by abutters, city and town officials and others during the permitting processes
were overstated. In fact, most of the controversy has evaborated since the developments have
been built and occupied and there is evidence that in some of the cases, the controversy led to
more proactive approaches to affordable housing development.
ON THE GROUND: 40B Controversies Before and After iv
Executive Summary
On the Ground, examines controversial housing developments built under Massachusetts
Chapter 40B, the Commonwealth’s Affordable Housing Law. The purpose of the research was
to determine the extent to which concerns raised during the permitting process were realized
once the developments had been completed and occupied. Anecdotal evidence influenced
the study hypothesis that the concerns were not realized at all, or not realized to the extent
that they were originally feared, once the development had been built and occupied for some
time.
In order to select the sites for the case studies, the researchers compiled lists of 40B
developments from several sources and applied a series of filters to them. Among these filters
were qualifiers that the developments must have had identifiable and documented controversy
and have been completed before June 30, 2006 in order to ensure the availability of sufficient
data and observation. The four cases chosen represent both rental and homeownership
developments and ranged in size from nine to 300 units. The following developments were
chosen for this report: The Preserve in Walpole, Kayla’s House Development in Newton,
Hastings Village in Wellesley and Dickson Meadow in Weston.
Through archival research, site visits and semi-structured interviews with key players, the
researchers identified the key controversies and concerns raised during the permitting
process. Among the fears and concerns that were uncovered were: municipal service capacity
and adequacy (i. e. schools, water, sewer and emergency services), density, neighborhood
change, environmental impacts, health and safety, property values, and the preservation of
open space.
The research showed that the controversies surrounding these cases were not realized to the
extent feared. The concerns raised varied for each project, but it can be concluded that the
underlying roots of these controversies are the loss of local control over zoning and fear of
ON THE GROUND: 40B Controversies Before and After v
the unknown impacts of the developments. In fact, now that the projects have been built
and occupied for more than two years, most of the controversies have evaporated.
In three of the four case studies, the experience of the 40B controversy made the
municipality more aware of the need for affordable housing and more proactive in the
planning for the development of that housing. This new, proactive approach will likely
involve working with developers, city and town government officials, and with community
residents and groups, resulting in less controversy in future projects.
vi
ON THE GROUND: 40B Controversies Before and After
Chapter 1
Project Overview
This project was commissioned by the Citizens’ Housing and Planning Association (CHAPA)
(heretofore referred to as “the Client”) with the support of Tufts University’s Urban and
Environmental Policy and Planning Department. This research examines controversial 40B
developments in Massachusetts in order to determine the extent to which adverse impacts that were
feared during the permitting process have been realized since the developments were built.
Study Hypothesis
Anecdotal evidence suggests that the controversy surrounding housing developments
built under Chapter 40B largely subsides after the projects are completed. This study
tests the hypothesis that the concerns raised during the permitting process are either not
realized or not realized to the extent originally feared once a development is built and
occupied.
CHAPA 40B Legislation Overview
Massachusetts General Law Chapter 40B was enacted by the State Legislature and signed
into law by Governor Francis Sargent in 1969. This law was seen as one of the earliest
recognitions of the racial and economic segregation often imposed by exclusionary zoning
practices such as minimum lot sizes and bans on multi-family housing.1 The purpose of
the law is to “address the shortage of low and moderate income housing in Massachusetts
and to reduce regulatory barriers that impede the development of such housing.”2
Often referred to as the “Anti-Snob Zoning Law,” the “Comprehensive Permit Law”
and the “Massachusetts Affordable Housing Law,” Chapter 40B is seen as a “one-stop”
ON THE GROUND: 40B Controversies Before and After 1
permitting process for developers proposing low and moderate-income housing projects.
Rather than applying to many local boards, the developer applies for a “comprehensive
permit” to one local authority—the Zoning Board of Appeals (ZBA).3
Chapter 40B is significant in that it was one of the first instances in which a state exerted
authority over local control in land use zoning.4 Therein also lays its controversy. Under
40B, a developer has the right to appeal to the state Housing Appeals Committee (HAC)
if it is denied a comprehensive permit for a qualified project, or if it is granted one with
conditions making the project uneconomic.5 Under 40B, ZBAs are able to approve projects
with higher density than current zoning allows, making it more economically feasible to
develop affordable housing.6
In order to qualify for a comprehensive permit, the project must have long-term
affordability restrictions on 20-25 percent of the units and meet the following
requirements:7
• The applicant must be a public agency, non-profit organization or a limited dividend
organization
• The project must be subsidized by a low or moderate-income housing subsidy program
• The applicant must have site control8
Chapter 40B establishes a requirement that 350 of Massachusetts’ municipalities provide a
minimum of 10 percent of their housing stock as affordable (zoning in the City of Boston
is controlled by the Boston Redevelopment Authority).9 This threshold is determined by
the Subsidized Housing Inventory (SHI) compiled and maintained by the Department of
Housing and Community Development (DHCD).10 As of September, 2008, 55 towns in
Massachusetts have obtained this goal.11 Because they have met the 10 percent threshold,
municipalities are largely immune from Chapter 40B zoning overrides. Developers
may still invoke 40B, however, to obtain the more streamlined comprehensive permit in
municipalities that have met the 10 percent SHI threshold. Cities and towns that have not
met the threshold must grant the comprehensive permit unless they can prove that denial
of the permit is “consistent with local needs,”12 which normally refers to issues of health,
safety or welfare.
A number of regulatory modifications have been implemented to assist municipalities
in achieving the goals of 10 percent SHI, including the Local Initiative Program (LIP)
and Housing Production Plan (HPP). The LIP, started in 1990, expanded the definition
of subsidy to include technical assistance between DHCD, the developer and/or the
municipality, thus creating more incentives for cities and towns to develop housing without
the state or federal financial requirement.13 In 2008, DHCD began allowing cities and
towns to submit a Housing Production Plan (HPP). Once the plans are approved, the
municipalities are certified by DHCD as being in compliance with that plan and the
certification lasts for a determined number of years.14 During the certification period, a
ZBA decision in these communities will be upheld as “consistent with local needs,” pursuant
to Chapter 40B.15 At last count, there were 81 DHCD-certified communities with plans.16
Controversies
While many projects completed under the Comprehensive Permit law have been non-
2
ON THE GROUND: 40B Controversies Before and After
controversial, the law, and the housing it creates, has garnered considerable contention in
its 40 years. At the heart of these controversies is the fact that 40B overrides local zoning
laws, allowing housing developments to be built that otherwise would not have conformed
to what the municipalities had originally envisioned or planned for. Many scholars and
advocates argue that “not in my backyard” (NIMBY) attitudes around affordable housing
have underlying tones of racism and/or classism. This report does not attempt to explore
this issue, but rather focuses on documented concerns raised by specific communities
during the proposal and permitting process of 40B developments, and the extent to which
those concerns were realized—if at all—once they were built and occupied. Included
among these controversies are changes to the character of a community, decreases in
property values of surrounding units, environmental concerns, infrastructure and traffic
and increased burdens on municipal services. These controversies are detailed further in
the report’s case studies.
Since its inception, Chapter 40B has created 48,000 units in 900 projects, including 26,000
affordable units. This number includes 33,700 rental units and 14,600 homeowner units
accounting for 34 percent of all housing production and 80 percent of all rental housing
production in the Greater Boston area.17 While Massachusetts was one of the earliest states
to create regulatory incentives for affordable housing, many other states have followed its
lead through other measures. Along with Massachusetts, New Jersey and California are
widely recognized as having model land-use regulations to promote and require affordable
housing development. The Mount Laurel Court decisions in New Jersey during the 1970s
and 1980s, declared zoning ordinances that prohibited low- and moderate-income housing
unconstitutional. As a result, exclusionary zoning ordinances can be challenged in court
and judges can enforce the Mount Laurel decisions through a “builder’s remedy” which
allows developers to override local zoning to construct affordable housing.18 California
is recognized as a leader in inclusionary zoning. Under inclusionary zoning, cities enact
ordinances mandating a certain percentage of units to be affordable or allowing developers
to pay fees in lieu of providing the housing.19 Other inclusionary zoning may provide
density bonuses to help pay for the affordable units. Many states and localities have looked
to California’s model and success to enact their own inclusionary zoning ordinances.
Finally, Rhode Island has also adopted regulatory measures to ensure more affordable
housing. In 2004, it enacted The Comprehensive Housing Production and Rehabilitation
Act, which bears many similarities to Massachusetts’ 40B, but also includes a planning
component.
Methodology
This study uses case-study methodology to examine four developments created under
Massachusetts Chapter 40B that were controversial during the permitting process. The
following strategies were employed to select four viable case study sites.
Site Selection
The sensitive nature of this topic required careful consideration in selecting which cases
would be included in the study. Because of the multitude of projects completed under 40B
during its 40 year history, we applied the following baseline criteria in our site selection
process. Each of the four case studies in this report has met the following criteria:
ON THE GROUND: 40B Controversies Before and After 3
Since its inception,
Chapter 40B has
created 48,000
units in 900
projects, including
26,000 affordable
units, accounting
for 34 percent of
all housing
production and
80% of all rental
housing production
in the Greater
Boston area.
Mixed Methodology
Methodology 1: Client List
Methodology 2: Random Selection
Table 1: Mixed Methodology
1.The project must have received its comprehensive permit after January 1,1999 and had to have been
constructed and occupied before June 30, 2006.
The first qualifier was chosen to improve the chances that stakeholders involved in the
proposal and permitting process would be accessible. The second qualifier was chosen
to ensure the availability of sufficient, measurable data and/or the opportunity for
community observations. This also takes into account the length of time controversial 40B
developments may take to build. Each development selected must have been built and
occupied for at least two-and-a-half years to be eligible for this study.
2. The project had an identifiable and documented controversy.
In order to revisit key controversies from the 40B development process, it was necessary to
ensure that the developments selected were indeed controversial. For the purposes of this
4
ON THE GROUND: 40B Controversies Before and After
study, “identifiable controversy” meant that opposition to the development was recorded in
the public record (e. g., newspaper articles, written correspondence, hearing transcripts, or
community meeting notes).
3.The project must be located within 30 miles of Boston.
This is simply a convenience criterion for the researchers, in view of distance and travel
times to the sites.
4.The project must not be located in or near communities with pending comprehensive permits.
This criterion was selected to avoid reigniting controversy about development via 40B in
communities currently considering 40B developments. As a monitor of 40B developments,
the Client cross-referenced potential sites with its records of 40B projects under review, and
eliminated potential case studies in or near communities of current projects.
Mixed Methodology
After identifying the baseline criteria for developments to be included in this study, a
mixed methodology was applied to select the four case studies. This mixed methodology
was designed to utilize the Client’s familiarity of 40B developments while also employing a
random-selection methodology. The goal was to ensure a range of community-level debates
representative of 40B controversies.
Client List
The Client, CHAPA, is keenly aware of the day-to-day controversies surrounding 40B
projects across the state. Using the preliminary selection criteria created by the researchers,
the Client identified seven possible developments for this study from a pool of more
than 100 projects. The researchers separated this list into two groups based on tenure
type, which included three homeownership developments and four rental developments.
From each of these lists, one site and an alternate were randomly selected. Through this
methodology, the researchers selected The Preserve in Walpole (rental) and Dickson
Meadow in Weston (homeownership).
Random Selection
The final two case studies were selected by combining two additional lists. The first was
a list of 25 developments suggested by Werner Lohe, Chairman of the Housing Appeals
Committee. The second was a list of 404 developments proposed under Chapter 40B
between 1999 and 2005, which was compiled by MIT researcher Lynn Fisher in 2007 and
2008 through surveys of 349 Massachusetts communities. This combined list was filtered
using the site selection criteria outlined above (See Figure 1). The remaining projects were
randomly grouped, sorted by tenure type, and drawn at random. From this process, the
final two case study sites – Wellesley (rental) and Newton (homeownership/rental) – were
chosen.
Field Research Process
In order to determine the controversies and concerns involved with each case study, the
researchers gathered information through the following methods:
ON THE GROUND: 40B Controversies Before and After 5
1. Archival Research - The researchers gathered extensive documentation of the permitting
processes and controversies through sources such as Zoning Boards of Appeals, the Housing
Appeals Committee, local newspapers and electronic media.
2. Site Visits - The research team visited each of the 40B developments discussed in this study.
This field research allowed for observation and documentation of the development in its built
state.
3. Interviews - The researchers conducted semi-structured interviews with a total of 40 people
from the four case study communities. Those interviewed included abutters, town and city
officials, developers, residents of the developments, property managers, and others who played a
role in the permitting process. Primary source quotations used throughout this study have been
cleared with the interviewees. In cases in which an interviewee did not wish for his or her name
to be identified, the term “interviewee” was substituted.
Study Limitations The limitations of this study include the following:
1. Study findings cannot be applied for all 40B projects
Considering the volume of housing developed under Chapter 40B, the research team
acknowledges that four case studies is a very limited sampling. While extensive research was
completed to arrive at the findings presented for these four cases studies, care should be taken in
inferring the results to all developments completed under Chapter 40B.
2. Inability to comprehensively apply quantitative methodology to the measurement of community concerns
After identifying community concerns expressed during the 40B permitting process, the research
team set out to determine if these fears were, in fact, realized once the project had been built.
While attempts to assess these impacts through quantitative methods were made, this was not
always possible due to limitations in or access to the data. In these instances, evidence was
drawn from narrative data to determine the impacts of these developments on their surrounding
communities. Thus, the accuracy of information gathered from interviews may be limited by the
interviewees’ inaccurate or incomplete recollection of events and details.
3. Logistical limitations
In controversial 40B developments, the permitting process is long, especially when permits
are appealed. Given this, the research team experienced challenges accessing some individuals
directly involved in the permitting processes. At times, the researchers were unable to speak
with individuals because they had left their positions. In other cases, individuals elected not to
participate in the study.
Endnotes
Krefetz, 381, 383
2 Massachusetts Regulations, Code Title 760 §56.01
3 Massachusetts General Laws Chapter 40B § 21
4 Krefetz, 384
5 Citizens’ Housing and Planning Association (CHAPA), “Fact Sheet on Chapter 40B, The State’s Affordable
Housing Zoning Law”
6 Ibid
1
6
ON THE GROUND: 40B Controversies Before and After
7 Ibid. Projects with affordable units targeted at 80 percent area median income (AMI) are required
to have 25 percent of the units allocated as affordable. A rental project can provide 20 percent of the
units as affordable if they are targeted to households below 50 percent AMI.
8 The requirements are all taken from Mass. Regs. Code Tit. 760 §56.04
9 Massachusetts Regulations, Code Title, 760 §56.03 (3)
10 Massachusetts Regulations, Code Title, 760 §56.03 (2)
11 Massachusetts Department of Housing and Community Development, Chapter 40B Subsidized
Housing Inventory
12 Mass. Gen. Laws Ch. 40B §20
13 Massachusetts Department of Housing and Community Development, “Local Initiative Program,”
DHCD Fact Sheets (accessed on April 22, 2009)
14 Mass. Regs. Code Tit. 750 §56.03(4)
15 Massachusetts DHCD, “760 CMR 56,” DHCD Regulations (accessed on April 22, 2009)
16 Massachusetts DHCD, “Housing Production Plan,” (accessed April 22, 2009)
17 CHAPA, “Fact Sheet on Chapter 40B”
18 Capuzzo, “Mount Laurel: A Battle That Won’t Go Away”
19 Pendall, “From Hurdles to Bridges: Local Land-Use Regulations and the Pursuit of Affordable
Rental Housing”
ON THE GROUND: 40B Controversies Before and After 7
8
ON THE GROUND: 40B Controversies Before and After
Chapter 4
Wa l p o l e T h e P r e s e rv e
Due to its location in a predominantly commercial area and about five miles away from the center of
Walpole,The Preserve case is unique among the four cases presented in this report in that there was
no abutter opposition. The concerns raised around the development were brought by town government
and revolved around the increased burden or stress a high-density development would place on
municipal services.This case concludes that the Town’s concerns were overstated and not realized to
the extent feared.
Walpole Community Profile
While Walpole has early roots as an industrial mill town, today only a small industrial
base remains. Walpole is now a growing bedroom community in close proximity to both
Boston and Providence and accessible to Boston by bus and commuter rail.1 Walpole’s
motto is “The Friendly Town;” and the Town Administrator, Michael Boynton, lauds the
volunteerism of its residents.
According to Boynton, the town is overwhelmingly reliant on its residential tax base; and
that, while it is working towards more economic development, Walpole remains heavily
dependent on state aid. The town has a mix of both blue-collar and white-collar workers
with rising home values and incomes. The ACS 2005-2007 estimates a median household
income of $90,736 and a median home value of $442,800, both significantly higher than
2000 census figures, representing the changes the town has seen over the past several
years.2
Residential development has had a major impact on the town since the late 1980s.
According to Boynton, Walpole has experienced a jump in population from 18,000
ON THE GROUND: 40B Controversies Before and After 9
to 24,000 in that time period; and, while the town provides exemplary services to its
residents, the service delivery level has been unable to keep pace with development.
Prior to construction of The Preserve apartments in 2005, the town had a few small 40B
developments and some multi-family housing in the downtown area, but a very small SHI
stock at just 138 units, or less than two percent of its total housing units. All but twelve of
those units were for elderly or disabled individuals.3 The Preserve was not only the town’s
first full-rental project, but also its first major 40B development, raising Walpole’s SHI
to 5.4 percent. 4
The Preserve
On March 16, 2000, Gatehouse Management, Inc., operating as Hilltop Preserve Limited
Partnership, applied for a comprehensive permit from the Walpole Zoning Board of Appeals
under Chapter 40B.5 The original plans called for 408 apartment units to be developed on
42 acres of land overlooking the Ganawatte Pond. The site is located in a predominantly
commercial area near the Foxborough town line on Route 1 in south Walpole.6 It is
about one mile from Gillette Stadium—home of
the New England Patriots. The number of units was
Walpole
scaled down to 344 at the time Gatehouse filed for
a comprehensive permit and subsequently reduced
Demographics
to 300 units.7,8 The development includes 72 onebedroom, 180 two-bedroom and 48 three-bedroom
Population
22,824
units in 13 three-story wood frame buildings.9 Initial
plans called for 25 percent of the units to be set-aside
Area (square miles)
20.53
as affordable to residents at 80 percent AMI. As a
result of later negotiations with MassHousing, the
Race
95.4% White
1.6% Black
developers changed that figure to 50 percent of the
1.1% Asian
units being designated as affordable to those at 60
percent AMI, or below. MassHousing financing for the
Median Household Income
$74,757
project included: a $32.5 million loan, $2 million in
(1999 dollars)
tax credits and an additional interest-free $1 million
loan with payments suspended until the end of the 30Total Housing Units
8,229
year mortgage.10
Owner Occupied
85.1%
Rental Occupied
14.9%
Median Home Value
$245,700
Subsidized Housing Inventory (SHI)
SHI Before Development
(1997)
1.98%
(138 units)
SHI After Development
(2008)
5.8%
(472 units)
Figure 2:Walpole Demographics
Sources: 2000 Census Data, DHCD Community Profile, and DHCD
Subsidized Housing Inventory
10
After convening a hearing and reviewing evidence on
the proposal, the Walpole ZBA denied Gatehouse’s
request for a comprehensive permit on October 4,
2000, citing that the “local need for affordable housing
was greatly outweighed by safety, infrastructure
and planning concerns raised by the plans for the
project.” 11 Gatehouse subsequently appealed its case
to the state HAC. The HAC conducted a site visit
and held six days of de novo evidentiary hearing with
sworn witnesses, cross-examination and verbatim
transcript.12 On April 10, 2002, it concluded that
Walpole failed to prove that the need for affordable
housing in the region was outweighed by health
and safety concerns of the project and directed
ON THE GROUND: 40B Controversies Before and After
the Walpole ZBA to issue a
comprehensive permit to the
developers. In its decision,
the HAC rejected nearly all of
the arguments ZBA members
used in denying the original
permit.13
On the Ground:
Before
Schools
One interviewee explained
that while the community,
Figure 3:Walpole CIS Map
“supports education to the
Map credit: Massachusetts CIS 2009
highest degree and their
generosity is admirable,”
Walpole continuously falls below the state average for expenditures per pupil. Schools are
often the major costs to a municipality facing a growing population. School costs are not
only determined by the number of students, but also by their needs; and Walpole feared that
the increased costs would be beyond its means.
During the permitting process, officials presented wide-ranging estimates of the number
of students that could be expected from The Preserve. In one estimate, Nancy Gallivan, a
School Committee member, used a formula that another town was using to estimate the
number of school-aged children that were likely to live in a development: 1.6 students per
unit. Gallivan predicted that Walpole would have 564 new students from The Preserve;
while another School Committee member, Ed Thomas, said 260 was a more realistic
number.14 The ZBA stated that, “it may be safely estimated that between 400 and 600
children of all ages will live in this Project… a substantial number of those children will
be enrolled in Walpole schools.”15 School Committee officials feared that the influx of
students would increase the schools’ budget by 5 percent or $1 million, requiring the hiring
of 13 additional teachers.16,17 The developer rebutted these figures, estimating that the
apartments would bring 61 school-aged children into the system.18
There are no documented estimates of the number of students coming from The Preserve
that officials expected to be English Language Learners (ELL) students or enrolled in
special education programs. Similarly, the town did not raise specific concerns about the
types of needs the projected students might have. However, one interviewee noted that
The Preserve is a rental project with half of the units being affordable to those making 60
percent AMI and it could be expected that its residents would follow socio-economic trends
for lower-income, rental housing residents. This may include language barriers and special
education eeds that could create an increased burden on the schools’ budget by necessitating
additional, specialized staff and services.
ON THE GROUND: 40B Controversies Before and After 11
The Preserve site (red) consists
of 300 apartment units in
13 buildings on 42 acres
of land. The site overlooks
the Ganawatte Pond in a
predominantly commercial
area near the Foxborough
town line on Route 1 in south
Walpole.
Figure 4: The Preserve Site Map
Photo credit: Google Earth
Sewer and Water Capacity
Town officials worried that the sewer system did not have the capacity to handle the new
development. They stated that the Master Sewer Plan of the town considered the proposed
site to be able to accommodate a maximum of 42 single-family homes (1 unit per acre).
One interviewee explained that Walpole officials were mostly concerned about a known
deficiency in their system in that area of town in which the sewer pipe crossed a river at a
relatively flat point. As the demand on the system increased, manholes would occasionally
surge at this point, but not to the point of overflowing. Town officials raised significant
concerns over the increased demand that a 300-unit development would place on the
system and the ability of the town to make the necessary infrastructure improvements.
Sewer and Water Commission Chairman Steven Davis told the ZBA that the town could not
supply adequate water and sewer service to the development in the timeframe envisioned in
the development plans.19
At the time The Preserve was proposed, the area of south Walpole was served by a one
million gallon water tank that had an effective capacity of 300,000 gallons. The south
Walpole tank provides water to 25 percent of the total services of the town. Officials
originally estimated that the peak demand from The Preserve could be 200,000 gallons
of water per day.20 This figure, provided by an engineering firm, was countered by the
developer’s own consultants who argued that usage could be estimated at 57,204 gallons
per day.21 Again, town officials claimed that the necessary improvements could not be made
within the development timeframe; and that south Walpole could expect water shortages
because it would take several years before the town could provide enough water for the
complex.22
Emergency Services and Pedestrian Safety
Testimony by the Fire Chief at the time, Kenneth Erickson, is well-documented in ZBA and
HAC proceedings as well as in archival news articles. The Chief argued that the site was
too distant from the fire station in the center of town, which would lead to an increased
12
ON THE GROUND: 40B Controversies Before and After
response time of almost six minutes, in ideal conditions, to get to the site.23 If there were a
Gillette Stadium event, that response time would be further increased.
Erickson also raised concerns about the type of construction used in the buildings and
the sprinkler systems chosen by the developers. He claimed that wooden truss buildings
without sprinklers in the attic, in combination with the distance of the site from the fire
station, could cause a fire to engulf the building before the department could arrive.24
Officials also pointed out that the height of the buildings combined with steep grading
around them prohibited the current fire equipment and ladders to reach the top of the
buildings in the case of a fire.
The Fire Chief and Town officials were very concerned about the amount of water pressure
located in the south Walpole pressure zone and claimed that tests their consultant conducted
showed that there was not adequate water pressure to fight a large-scale fire at The
Preserve.
The Preserve apartments are located in south Walpole on Route 1, a busy state highway
where the average speed is 50 mph.25 Chief Erickson and other Town officials cited many
concerns regarding the safety of pedestrians along Route 1. Erickson claimed that most
of the town’s attractions were located on the west side of the highway—across from The
Preserve site—and he worried that pedestrians could be hit trying to cross.26 The Town
wanted to require Gatehouse to build sidewalks along Route 1. They also raised concern
about students waiting for school buses alongside the highway.
“This property
could produce
significant
tax revenue
for the town.
With all of
the stadium
development...
the land as
housing is less
desirable.”
Inconsistency with Community Planning
Town officials expressed dismay over the loss of 42 acres that they had wanted to develop
commercially. As the Town Administrator stated, Walpole is overwhelmingly reliant on
its residential tax base, and Town officials had been working to create more economic
development opportunities for the town in that area. A consultant had previously identified
the site as one of Walpole’s most promising areas for business development because of its
proximity to Gillette Stadium. The report resulted in the rezoning of the site for “light
manufacturing” use earlier in 2000, before the Gatehouse proposal. Ken Fettig, then
Chairman of the Economic Development Committee, said that the Town felt, “this property
could produce significant tax revenue for the town;” and that, “with all of the stadium
development. . . the land as housing is less desirable.”27
On the Ground: After
Schools
In a review of School Committee minutes stating enrollment numbers and current data
provided by officials, it is safe to say that the number of students coming from The Preserve
is significantly lower than the number that the Town expected. In a September 12, 2005
School Committee meeting, the first school year that The Preserve opened, principals
from the middle schools estimated that 22 new students enrolled from the development.28
Numbers from the high school were not represented in the minutes. Once The Preserve
was fully occupied, the school enrollment from the development increased a bit. During
the 2008-2009 school year, Walpole schools had a total of 90 students from The Preserve
(36 at the elementary school, 23 at the middle school and 31 at the high school). This
ON THE GROUND: 40B Controversies Before and After 13
number is nearly 50 percent more than the 61 students the developers estimated, but only
about one-sixth of the 564 students that some officials had feared. One interviewee noted
that the school system had to hire the equivalent to an additional half of a bus to handle the
students from The Preserve. This has cost the Town about $35,000 per year.
Public school
enrollment
from The
Preserve is
only one-sixth
of the 564
students that
some officials
had feared.
While the town has experienced some impacts on their schools because of the development,
the schools, traditionally under-funded have nevertheless managed the growth well. The
numbers of students and costs originally projected were significantly overstated and did not
bring the schools “into a state of crisis” as one School Committee member had originally
predicted.29 A greater problem is that Walpole is consistently below the state average in
expenditures per pupil. If the Walpole school district enrollment continues to grow at its
normal rate of five percent each year, this is going to continue to be a significant problem.
This challenge is not connected to The Preserve or 40B development.
Walpole schools have seen an increase in the number of ELL students; and much of that can
be attributed to The Preserve. Michael Stanton, Principal of Boyden Elementary, explained
that the school received 65 total new students in the 2005-2006 school year; 35 of those
came from The Preserve. Also, during that school year, Boyden saw its ELL number
increase from zero students to 22, with 15 of those coming from The Preserve. In total,
70 percent of the ELL students at Boyden are residents of The Preserve. At Bird Middle
School, current numbers of ELL students are lower—at just eight with three of those
students living at The Preserve. There was not any information at the high school level. In
total, the Walpole district has hired one-and-a-half additional teachers to handle the increase
in ELL students over the past several years.
Special education numbers vary by the school. At the elementary school, 13% of students
were enrolled in special education plans during the 2008-2009 school year. Less than one
percent of the students enrolled were from The Preserve. That is to say that less than three
percent of students from The Preserve are enrolled in special education at the elementary
school. It was different at the middle school, however, which showed 30 percent of the
students from The Preserve being enrolled in special education plans and two students
(out of 16) being enrolled in the “special needs” program, requiring significant individual
instruction. Finally, the high school presented numbers of 38.7 percent or 12 students
from The Preserve enrolled in special education during the 2008-2009 school year. This is
in comparison to 15 percent or 158 students from the total school population.
While acknowledging the other impacts the development may have had on the town,
Stanton stated, “[The Preserve] has brought a lot to the school in a positive sense.” He
continued, saying that the school is more diverse, with a population that is now 10 percent
non-white and with four languages spoken in students’ homes. This is an encouraging sign
that the original intent of the law—to combat some of the racial and economic segregation
that exclusionary zoning practices can encourage—is being realized. He also stated that
while there has been a significant increase in enrollment at the school, there is a perception
that all of it is coming from The Preserve, which is not entirely true. Mr. Stanton also
pointed out that the school district has reached out to new students from The Preserve
in proactive ways, such as working with the management to offer an open house for the
students and their families.
14
ON THE GROUND: 40B Controversies Before and After
Sewer and Water
The Preserve utilizes a pump system, owned and maintained by the development, which
stores waste in on-site storage tanks before pumping it into the Walpole sewer system
during off-peak hours. This has avoided any surges in the sewer system and has mitigated
the increased demand from the new units. The known deficiency in the pipe that raised
concerns for the Town was later remedied as a condition for a commercial development
located in Foxborough that wanted to be connected to the Walpole sewer system. Boynton
explained that since The Preserve opened, there has been an odor problem, due to possible
off-gassing in the surrounding neighborhood. He noted that it coincided with the times
in which The Preserve pumps its waste into the system, but stressed that it has not been
directly correlated to the development itself. According to another interviewee, the Town
is currently installing a new pipe, at a cost of $165,000, to remedy this problem.
While Town officials raised density concerns, stating that the Master Sewer Plan accounted
for a maximum of 42 single-family homes; the developers pointed to the fact that the site
had recently been re-zoned for light manufacturing, which could “well exceed sewer flows
contemplated by The Preserve.”30
In regards to water capacity, the fear that The Preserve would use 200,000 gallons of water
per day was overstated. In 2008, the development averaged 35,000 gallons of water use
Photo credit: Brendan Goodwin
ON THE GROUND: 40B Controversies Before and After 15
Photo credit: Brendan Goodwin
per day, significantly less than either the town or developer had estimated. Concerns about
water capacity were debated in great detail during the HAC hearings. Ultimately, the HAC
ruled in favor of the developers, citing calculation errors by the Town’s consultant and the
fact that the Town already had future plans to rehabilitate its wells. Indeed, a Town official
confirmed that Walpole, through a state loan, made significant infrastructure improvements
in June 2004, before completion of The Preserve. These included the addition of another
1.5 million gallon tank, increasing water storage in the area two-fold, and the reactivation
of a well in that area.
Emergency Services and Pedestrian Safety
In responding to these concerns, the HAC concluded that the town did not satisfy “its
burden of proving a local health and safety concern that outweighs the regional need for
housing.”31 The HAC also pointed out that residents of The Preserve are the same distance
or even closer to emergency services than residents of the Ganawatte Farm subdivision, a
new market rate development in the area.32 The increased response time during stadium
events is not a result of The Preserve and, in fact, Walpole has made arrangements with
the stadium to pay for fire personnel to be stationed at nearby Station Three and for police
officers to be stationed on-site at The Preserve to respond to any on-site emergencies.
The Preserve was constructed in accordance with all state fire safety and building codes,
including the requirement that the buildings be equipped with a sprinkler system. There
is no evidence that the construction type increases fire hazards; and, in fact, some argue
that fire safety might be even better in a multi-unit building than a single family home
because there may be more warning and help from neighbors in the case of a fire. In
response to concerns about the current fire equipment being able to reach the tops of the
buildings, the developers reduced the grading around the buildings to remedy the issue. An
unanticipated problem discovered after construction, however, is that because the buildings
do not have elevators, when an ambulance responds to a call at The Preserve it must take
16
ON THE GROUND: 40B Controversies Before and After
extra personnel in case they need to carry a patient down the stairs of one of the threestory buildings. With an eight-man department, the interviewee explained that this type of
situation places significant burden on Walpole’s emergency personnel.
While the Town’s consultant claimed there was inadequate water pressure for firefighting in
the area, those tests were trumped by calculations by both the developer’s consultant and
the HAC. An interviewee explained that the one million gallon water tank that existed in
south Walpole had an 80 percent capacity for water at the necessary pressure to fight fires;
and that there have been no pressure problems since The Preserve was constructed.
An unanticipated consequence of the development was the strain it would place on the
Walpole Police Department. Several people contacted inferred that there was a lot of
police activity at the development since it opened in 2005. One official did not believe that
there were necessarily more calls to The Preserve than what might be seen in other parts of
the town; but rather that because it is a population-dense area, this may create a perception
that there is more police activity at the site. The official continued, saying, the nature of
the police calls to The Preserve are of the same nature as is “typical of highly concentrated
areas”: larceny, domestic disputes and harassment issues with kids. Additionally, there has
been an increase in crime in Walpole. But the interviewee did not attribute this to The
Preserve, instead explaining it as a general trend throughout the town. Finally, the same
concerns raised by other emergency services were also seen in the police department.
Because of the distance between the police station and The Preserve, two officers have to
respond to every call at the site because it is too far to allow for backup to arrive quickly, if
it was needed. This represents two-thirds of the department’s on-duty force.
The HAC
concluded
that the town
did not satisfy
“its burden
of prooving a
local health
and safety
concern that
outweighs the
regional need
for housing.”
Regarding pedestrian safety, the developers responded in their appeal to the HAC, that, “the
development will create no greater safety issues than those created by many other smaller,
market rate . . . developments near or adjacent to Route 1 . . .”33 The HAC sided with the
developers saying that these concerns were not grounds for denial of the comprehensive
permit; and that, in fact, there were other attractions along Route 1 likely to “draw young
pedestrian traffic including the FunWay Amusement Center, the Iorio Dormitory and the
Goddard School,” all developments in which the Town did not require sidewalks.34 Since
The Preserve opened, there have been no major accidents. But one official explained that
he saw pedestrians on Route 1 “all the time” and the problem has never been addressed. To
address the concerns of students waiting for buses, the developers agreed to construct three
bus stops within the development, off of Route 1. In addition, they expanded the width
of the entrance driveway so that buses could turn around and not have to back out of the
development.
Inconsistency with Community Planning
It is difficult to determine the impact that housing, as opposed to commercial development,
has had on this area, because we cannot know what, if anything, would have been developed
in place of The Preserve. While the Town’s chief concern was the loss of 42 acres that could
have been used for economic development, as The Preserve was completed the Town of
Walpole published an eight-page promotional piece touting its many available commercial
properties and economic development opportunities.35
According to the town Assessor’s Office, Walpole maintains a current residential tax rate
of $11.67 per $1000 in assessed value, while the commercial rate stands at $15.16. The
ON THE GROUND: 40B Controversies Before and After 17
Summary of Controversies and Outcomes
Controversy
Concern
Outcome
School Impacts
• Influx of 260-564 new students
• Need to hire 13 new teachers
• Increase in students would bring
the district “into a state of crisis”
• 90 students (2008-2009)
• 1.5 ELL positions created
• The numbers were significantly
lower and the district seems to have
managed it well
Sewer and Water
Capacity
• Sewer system would fail under
increased demand
• The Preserve would consume
200,000 gallons of water per day
• Infrastructure improvements
could not be made before the
development was completed
• Demand was remedied by pump
system
• Average consumption was 35,000
gallons per day (2008)
• All improvements were completed
by 2004, before the project was
completed
Emergency Services
and Pedestrian Safety
• Response times due to distance
from center of town and
increased time during stadium
events
• Insufficient water pressure for
firefighting
• Lack of sidewalks at The
Preserve
• No major incidents. Stadium pays
for police and fire at The Preserve
during events
• Other tests showed sufficient
pressure. No problems experienced
• No incidences and sidewalks were
not required for other commercial
and market-rate developments
Inconsistency with
Community Planning
• Loss of 42 acres that could have
gone to economic development
• Loss of commercial tax revenue
• Town advertised many
opportunities and spaces for
commercial development after
construction
• The Preserve generates
approximately $371,000 in tax
revenue per year
Figure 5:Walpole Demographics
Preserve apartments were most recently valued at $31,789,400, which generates nearly
$371,000 in tax revenue for the town at the residential rate.
Conclusion
It is not surprising that a small, suburban town would have concerns about a 300-unit rental
development, whether it includes affordable or market-rate units. The Town of Walpole,
in its stewardship, raised many legitimate concerns about The Preserve apartments, which
were taken to the Housing Appeals Committee and almost all the way to the Supreme
Judicial Court, before the case was settled. Its HAC case is considered a landmark
18
ON THE GROUND: 40B Controversies Before and After
40B court decision in that it exhaustively examines why a local ZBA cannot deny a
comprehensive permit on the grounds of the project’s impact on municipal services.36 The
HAC decision also states that the services that Walpole was worried that the development
would disrupt are services that the Town is legally required to provide.
As detailed in this case study, many of the concerns that were raised by the ZBA and town
officials have not been realized to the extent that they were originally feared. This is
particularly evident in the number of school-aged children from the development and the
water usage numbers. Less quantifiable, and perhaps somewhat subjective, are the impacts
of the loss of land for economic development, pedestrian safety concerns and some of the
fire, police and safety concerns. However, based on interviews and other research, it is
clear that The Preserve development has not caused extraordinary, adverse impacts to the
quality of the services that Walpole is able to provide its residents.
In fact, Boynton admitted that, after the HAC decision, the Town entered into very
constructive negotiations with Gatehouse to mitigate some concerns and move the project
forward. Additionally, there have been some benefits that came out of the development,
including, that the town “learned a lot from the flat out denial” by the HAC; and that the
town is more aware of its housing needs and goals. Boynton explained that Walpole’s
Subsidized Housing Inventory grew from 1.98 percent to 5.7 percent, largely because of
The Preserve. This has brought Walpole significantly closer to the 10 percent affordable
housing threshold required under 40B. Jon Rockwood, Chair of the Housing Partnership
Committee (called the Affordable Housing Committee during the time of The Preserve
case), said that this project “changed the debate in town.” Rather than focusing solely on
homeownership, Walpole is now taking a more proactive approach towards meeting the
10 percent threshold through more manageable, smaller developments. Previously, the
Affordable Housing Committee was reactive in nature; it has now been reformed as a
partnership with a plan to use programs such as the Local Initiative Program (LIP) and the
Smart Growth 40R initiative to develop more affordable units in the future. Don Johnson,
the Town Planner, stated that the town’s Master Plan went through a major update in
2003-2004 and included the recommendation that the Town “take the lead in the creation
of affordable housing” by creating a Housing Partnership and a Housing Production Plan
(HPP). DHCD approved the HPP in February 2008, certifying it for the next four years.
A certified HPP means that any decision by the Walpole ZBA will be deemed “consistent
with local needs” and will be upheld by the HAC, essentially granting immunity from
40B challenges for the term of the certification, provided that the objectives of affordable
housing creation within the plan are being achieved.37 Johnson stated that the Walpole
Housing Partnership was established in early 2009. Under the Partnership, the Town is
taking a proactive role in the creation of affordable housing, rather than just reviewing
private petitions.
As a result of
The Preserve,
Walpole is
taking a
more proactive
role in the
creation of
affordable
housing.
Affordable housing and Chapter 40B proponents have long argued that communities have
had 40 years to bring their affordable housing inventory up to the ten percent threshold
so that they would not be vulnerable to the comprehensive permit law. Walpole has fully
realized the importance of reaching that threshold and now appears to be proactively
working towards that goal.
ON THE GROUND: 40B Controversies Before and After 19
Endnotes
1 Walpole Visitor
Center, “About Walpole”
U.S. Census Bureau, American Community Survey, 2005-2007, 3-Year Estimates: Summary
Population and Housing Characteristics: Walpole, Massachusetts
3 Glynn, “Apartments Seen Offering Some Advantages to Town”
4 Ibid
5 See Hilltop Pres. Ltd. P’ship v. Walpole Bd. of Appeals, Mass. Housing Appeals Comm. No. 00-11,
April 10, 2002
6 Glynn, “Plan for 408 Apartments Gets Chilly Reception”
7 Glynn, “Gatehouse Cuts Number of Apartments”
8 Glynn, “Gatehouse Scales Back”
9 Glynn, “Plan for 408 Apartments Gets Chilly Reception”
10 Glynn, “State Gives Gatehouse $1 Million Loan”
11 Glynn, “Plan for 408 Apartments Gets Chilly Reception”
12 Ibid
13 Burns, “State Approves Gatehouse”
14 Beam, “School Committee Expresses Concerns about Gatehouse”
15 Glynn, “ZBA Rejects Gatehouse”
16 Glynn, “Gatehouse Claim to Site is Challenged”
17 Beam, “School Committee Expresses Concerns about Gatehouse”
18 Glynn, “Town Officials Cite Hyannis Case”
19 Glynn, “Gatehouse Scales Back”
20 Glynn, “Commissioner Says Test Shows Inadequate Water Flow for Firefighting”
21 Koningisor to Walpole ZBA, “Re: Responding to Written Comments Filed with the MEPA by the
Town of Walpole”
22 Glynn, “Gatehouse, Town Disagree About Water”
23 Burns, “Fire Chief Testifies at Hearing”
24 Glynn, “Gatehouse Decision Up to State”
25 Burns, “Fire Chief Testifies at Hearing”
26 Ibid
27 Beam, “Town Meeting Rezones Gatehouse Site”
28 Walpole Schools, “Walpole School Committee Meeting Minutes”
29 Glynn, “Gatehouse Claim to Site is Challenged”
30 Koningisor to Walpole ZBA, “Re: Responding to Written Comments”
31 Hilltop Pres. Ltd. P’ship v. Walpole Bd. of Appeals, Mass. Housing Appeals Comm.
32 Glynn, “Plan for 408 Apartments Gets Chilly Reception”
33 Glynn, “Gatehouse Files Appeal”
34 Burns, “State Approves Gatehouse”
35 Burns, “Innovative Development Plan in Walpole”
36 Regnant and Haverty, “Compelling Reasons Why the Legislature Should Resist the Call to Repeal
Chapter 40B”
37 Mass. Regs. Code tit. 760 §56.01
2
20
ON THE GROUND: 40B Controversies Before and After
Chapter 5
N e w t o n T h e K ay l a ’ s
House Development
The Chapter 40B controversies surrounding the Kayla Rosenberg House Development (Kayla’s House)
in Newton centered on community process and neighborhood change. The neighborhood association
led a movement to derail the developer from bringing transitional housing to the neighborhood.
Concerns about environmental and health risks, increased traffic, and the developer’s inexperience
with producing market rate units were presented to the ZBA. These concerns were not realized, and
the community has since accepted the development. Additionally, the city has learned to integrate
more sophisticated community involvement processes into the development of affordable housing.
Newton Community Profile
Newton, Massachusetts, or “the Garden City,” is a suburban city situated approximately
six miles west of Boston. Newton’s median household income is $86,052 (compared to
$50,502 in Massachusetts), median family income is $105,289 (compared to $61,664
in Massachusetts) and per capita income is $45,708 (compared to $25,952). In 2000,
among owner-occupied units, 41.5 percent of dwellings were valued between $300,000
and $500,000, with 37.9 percent of homes valued at greater than $500,000, and the
remaining 20.6 percent at less than $300,000. Under one-quarter (23.3 percent) of the
dwellings in Newton were constructed after 1960.1
The Kayla’s House Development
The Kayla’s House Development2 lies in a Mixed Use 1 Zone, directly adjacent to a Single
Residential 3 Zone.3 The property is situated near one of the few remaining industrial
areas in Newton.4 The development sits on a 35,393 square foot lot and has 120 feet
ON THE GROUND: 40B Controversies Before and After 21
of property line facing the street.5 The development is a hybrid of rental and ownership
dwellings consisting of nine total units, five of which are transitional, rental units and four
are homeowner condos. The five rental units in Kayla’s House are designated for single
mothers earning less than $24,000 per year; and one of the four homeowner condo units
has been designated for a first-time homebuyer making less than $56,000 per year. The
three market rate units were projected to sell for $425,000; and the first-time home-buyer
unit was put on the market at a deed-restricted price of $256,000.6
On the Ground: Before
The building now known as Kayla’s House had been used for many years as a group home,
but the administering agency moved out and the owner decided to put the house up for
sale.7 Citizens for Affordable Housing in Newton Development Organization, Inc. (CANDO) identified the property as a viable opportunity to develop affordable housing. In
partnership with the Newton Community Services Center (NCSC), CAN-DO bought the
property for $500,000 in August of 1999.8 The unit was to be rehabilitated and then house
clients of NCSC’s Young Parents Program, which would provide transitional housing for a
vulnerable population of young, single mothers.
CAN-DO received assistance from the City of
Newton
Newton Planning and Development Department
and its Community Development Block Grant
Demographics
(CDBG) funds, and NCSC received a federallyfunded HUD McKinney grant.9
Population
83,829
Area (square miles)
18.22
Race
88.1% White
7.7% Asian
2% Black
Median Household Income
(1999 dollars)
$86,052
Total Housing Units
32,112
Owner Occupied
69.5%
Rental Occupied
30.5%
Median Home Value
$438,400
Subsidized Housing Inventory (SHI)
SHI Before Development
(2002)
4.88%
(1,554 units)
SHI After Development
(2008)
7.6%
(2,435 units)
Figure 7: Newton Demographics
Sources: 2000 Census Data, DHCD Community Profile, and DHCD
Subsidized Housing Inventory
22
CAN-DO held three community meetings in
the fall of 1999 and in early 2000 to discuss its
plans for the Kayla’s House property leading up
to the initial filing of a comprehensive permit
with the Newton Zoning Board of Appeals
on May 2, 2000.10 Over the course of these
meetings, CAN-DO and NCSC expressed
their plans for the property to members of the
community. The development was originally
proposed in two phases; phase one would involve
the rehabilitation of the existing Victorian
house, which would be followed by phase two,
the construction of two duplexes, with two
of the four proposed units deed-restricted
affordable to moderate-income, first-time home
buyers. However, upon the suggestion of the
Planning and Development Department, several
modifications were made to the original plans,
increasing project costs to the point of making
the original plan economically infeasible. The
proposal brought before the ZBA on May 2,
2000 called for one project (both the rehab and
new construction) in which only one of the four
homeowner units would be deed-restricted
affordable to a family with an income of less than
ON THE GROUND: 40B Controversies Before and After
80% AMI.11 It was proposed
that the remaining three
condominium units be sold
to Newton city employees
at “an affordable rate,” per
funding under the Community
Preservation Act.12
An abutter filed suit with
the Massachusetts Land
Court on June 29, 2000 in
opposition to the CAN-DO
proposal. The suit called for
the annulment of any ZBA
decision to grant CAN-DO a
Figure 7: Newton CIS Map
comprehensive permit.14 The
Map
credit:
Massachusetts CIS 2009
Newton ZBA initially granted
the Comprehensive Permit
with 34 conditions on July 18, 2000. These conditions included various steps to be taken
prior to receiving a permit to build, specifications on what modifications would need to be
made to landscaping, curbing and a retaining wall, and requirements on the experience and
bonding of the contractor.14 This suit was quickly withdrawn, however, when the developer
agreed to move the two duplexes further away from the abutter’s property (closer to the
western edge of the lot and the boundary with the abutting chemicals manufacturer) and the
inclusion of additional screening trees between the developer’s and the abutter’s respective
properties. The petition to amend the original comprehensive permit was filed on March
6, 2001 and approved by the ZBA on April 17, 2001.15 Construction got underway in May
2002 and was completed in June 2003.16
Community Process
When Chapter 40B became law in 1969, the Newton Community Development Foundation
proposed six 40B sites simultaneously in various parts of Newton. All were denied
comprehensive permits based on the lack of detail provided by the petitioner and the
mobilization of opponents. Because of the concurrence of projects throughout Newton,
the various neighborhoods mobilized in common cause against the removal of local control
over zoning.18 Newton was then the first Massachusetts city to adopt inclusionary zoning
in 1977.19 The recent history of Chapter 40B in Newton has been, for the most part,
amicable. Among the 113 Massachusetts communities studied in a 2007 report, 40B
developments had a greater chance of approval in Newton than in other communities.19
Most have been considered “friendly 40Bs,” with only one or two since 1997 not having the
support of the Planning and Development Department and local planning board, including
larger-scale projects.21 Given this history, CAN-DO and Newton city planning staff
members were surprised when this development was met with opposition.
A non-profit developer proposing dense development on the boundary between singlefamily residential and industrial mixed-use zones should have been uncontroversial.21
Josephine McNeil, Executive Director of CAN-DO, thought that the neighbors would
welcome a residential use in lieu of further encroachment of the nearby commercial/
industrial zone.22 According to Michael Kruse, the Director of Planning and Development
ON THE GROUND: 40B Controversies Before and After 23
The western edge
of the lot (along
the white fence) sits
across the railroad
tracks from the
boundary with the
abutting chemicals
manufacturer.
Photo credit: Jeremy Robitaille
in Newton, a heated discussion erupted at the first public meeting over the neighbors’
distrust of the city’s initial investment in acquiring the property. The city had assisted
CAN-DO with the purchase of the property, but the developer did not approach the
neighborhood to communicate its intentions until after this transaction. Kruse was
truly surprised by the criticism leveled at the City and the Planning and Development
Department. Angry neighbors were not convinced that they were being told the whole
truth; Kruse sensed that they viewed the development as a fait accompli, with their input
and concerns only being nominally heard.23 Additionally, four aldermen spoke in favor of
the project before the ZBA, including the Ward representative, Alderman Myra Tattenbaum.
This proved somewhat unusual, as Newton aldermen are known for being somewhat
hesitant to stand up to their constituents.24 This may have contributed to the local
residents’ feeling of distrust and powerlessness in this particular community process.
Neighborhood Change
After the first public meeting, the local neighborhood association leafleted the
community in an effort to halt CAN-DO’s proposed development. A local resident of the
neighborhood, Eileen Freiberg-Dale, remembers receiving a pamphlet at her door calling
on the neighborhood to “Stop This Project!” A social worker by training, Freiberg-Dale was
familiar with the Newton Community Services Center and trusted that they would run a
viable program. She found her way to Josephine McNeil and agreed to lead the effort to
mobilize in support of the proposed development, holding meetings in her living room and
attending the public meetings to endorse the CAN-DO/NCSC project.25
Local opponents argued that the neighborhood should remain zoned for single-family units
only. Many asked why this development could not be built on the other side of a major
thoroughfare, in a less affluent neighborhood. Given the intended use of Kayla’s House,
24
ON THE GROUND: 40B Controversies Before and After
there was a perception among the vocal neighborhood opponents that “these were wayward
women who would bring dangerous men into their neighborhood along with delinquent
children.”26 McNeil also received a call from an outraged neighbor who exclaimed that
“there was no way there was going to be public housing in his neighborhood. He had lived
in public housing and knew what kind of people those people were.”27
Environmental Threats and Impact on Public Health
The Newton Zoning Board of Appeals also entertained three other concerns raised by the
neighborhood. These were: (1) environmental threats to future residents and the impact
on public health posed by abutting industries, (2) increased traffic volume and (3) concerns
over the developer’s inexperience building market rate units. All three were argued with
varying degrees of success, and prompted some mitigating action.
An October 1993 fire at the abutting chemical factory seriously injured eleven firefighters
in Newton. An explosion occurred when the firefighters attempted to douse a sodium fire
with water.28 Eileen Freiberg Dale recalls, “I remember the explosion. We knew something
terrible had happened. People were really injured, firefighters, etc. I didn’t even know
there was a danger down there until then.”29 This was fresh in the minds of the Kayla’s
House neighborhood when a deadly fire ravaged a Route 9 commercial building in Newton
on Wednesday, February 9, 2000 in Newton.30
The timing of this 2000 fire seems to have been crucial to the framing of the environmental
and health risk argument by the neighborhood association. The association sent a letter to
the Newton Health Department expressing its concerns about the potential threats to the
The Kayla’s House
Development
(orange) lies in a
Mixed Use I Zone,
directly adjacent to
a Single Residential
3 Zone (purple)
and one of the few
remaining industrial
areas in Newton
(yellow).
Figure 8: Kayla’s House Site Map Map credit: Google Maps 2008
ON THE GROUND: 40B Controversies Before and After 25
health and environment of their neighborhood. The letter outlined concerns pertaining to
There was a
dust particles, a “sulfur-like” odor, and noise pollution coming from the factory. Reference
perception
was made to the 1993 fire, as well as the need for a “green buffer zone” between the
among the vocal residential and industrial areas.31
neighborhood
The Newton Health Department requested an inspection of the abutting factory premises
the Massachusetts Department of Environmental Protection (DEP) to investigate the
opponents that by
neighborhood’s concerns about odors and noise. This inspection took place on June 1,
2000. The factory agreed to install noise abatement equipment. The facility also planned
“these were
to install a Hydrogen Sulfide Scrubber to address the odor complaints.32 The conditions
wayward women required
of the developer in the initial comprehensive permit also stipulated the completion
of
a
21E
Phase
II survey to ensure that the property had not been contaminated.33 To
who would
address the concerns over a “green buffer zone,” the comprehensive permit conditions also
bring dangerous required the Director of Planning and Development to approve a final landscape plan. It
required that the landscaping be “maintained in good condition and any plant material that
men into their
has become diseased or dies shall be replaced annually with similar material.”34
neighborhood
Traffic
along with
The Kayla’s House Development is located between two blind turns in the road. This, along
delinquent
with the poor conditions of the road, prompted the neighborhood association to outline
additional concerns regarding the development’s location at a segment of the street that “is
children.”
maintained very poorly and presents a permanent danger of potential traffic accidents.”35
In a letter to the Newton ZBA, the president of the neighborhood association cited the 13
accidents that had been reported in the last four years (1996-2000), and that the addition
of the CAN-DO development would add traffic volume to an already dangerous area.36
Freiberg-Dale acknowledged the concerns with traffic, as this street is often taken as a
means to avert the heavier traffic on a main route into the neighboring city of Needham.
However, a report employing Institute of Transportation Engineers (ITE) trip generation
statistics estimated the addition of 28 trips per day. According to City of Newton Traffic
Engineer at the time, this was considered minimal and no cause for concern.37
Experience of the Developer
The capability of CAN-DO as a developer was called into question by opponents for a
number of reasons. First, CAN-DO neglected to present a bid from a contractor, providing
only its own estimated costs. Second, the neighborhood association called into question
the proposed market-rate price of $375,000, citing that this valuation failed to take into
account the property’s abutment to an industrial establishment and the density of units
on the property.38 The abutter expressed concern about CAN-DO’s lack of experience
developing market-rate units. According to this abutter, adjustments had not made to the
value given that “the proposed units [would be] located directly next to a factory as well as
sharing a lot with low-income housing.”40
The number and specific types of conditions included in the ZBA’s initial approval suggest
that the concerns about the developer’s experience were considered. The petition for
a comprehensive permit was granted, but subject to 34 conditions.40 McNeil noted
that others outside of Newton were of the opinion that the number of conditions was
excessive.42 Michael Kruse maintains that this number was pretty typical, reflecting the
change over time where city officials have held developers to high levels of scrutiny to
include as much detail as possible in any board decision. However, Kruse maintained that at
26
ON THE GROUND: 40B Controversies Before and After
Photo credit: AmyYuhasz, Newton Dept. of Planning and Development
least one of the conditions was unusual.42 This condition read: “That the selected contractor
be required to have a minimum 15 years experience and have successfully completed 10
low/moderate income developments.”43 The types of conditions imposed upon CANDO in the granting of a permit to build enabled the city to keep rather close watch over
the developer, perhaps due to concerns about the developer’s apparent inexperience with
developing market rate units. As a result of the 34 conditions, CAN-DO had to obtain
additional sources of city funding, as well as donations from several area patrons.44
On the Ground: After
Today, over five years have passed since the Kayla’s House Development was constructed
and occupied. Neighbors and municipal officials contend that the neighborhood has not
fundamentally changed, but some unintended consequences have occurred. One notable
change is how many of those involved learned from CAN-DO’s experience and worked
to improve how the city communicates about the development of affordable housing in
Newton.
Community Process
Trisha Guditz, Housing Programs Manager of the Newton Planning and Development
Department maintains, “I’ve seen the city become more sophisticated in knowing what is
ON THE GROUND: 40B Controversies Before and After 27
going to happen with a 40B [development].”46 This is reflected
in the “Summary of the ‘Step-by-Step’ Comprehensive Permit
Process” document drafted in February 2005. Among its
16 steps, number four states: “[the] Petitioner is strongly
encouraged, but not required, to meet with abutting neighbors/
neighborhood associations and the Housing Partnership to
review the preliminary concept plans.”46 For Michael Kruse,
the Kayla’s House comprehensive permit process was a lesson
in communicating with the community when it comes to
affordable housing development. This project prompted the
Newton Planning and Development Department to consider
different paths to take in dealing with developments that need
to apply for a comprehensive permit versus those that may only
need financial assistance. The Department considered whether
or not to tell neighbors about a proposed project even when
approvals were not required. There has also been a culture
change where high standards can be mitigated and compromised
when it comes to developing affordable housing.48 Jason
Rosenberg, a Newton land use attorney who represented CANDO throughout the development process, claims that all too
often in Newton, the attitude is that: “this is Newton, we want
the project to be absolutely perfect.”48
The overriding of local zoning for the purposes of building
affordable housing can have a real impact on the residents of the
surrounding community. The extent to which city officials can
encourage proactive involvement by developers early and often
in the process may speak to the potential for a 40B development to get completed. Of
course, one interviewee affirmed that despite having no problem with the current residents
of Kayla’s House Development, they remain opposed to the development on principle:
Photo credit: CAN-DO
It does violate our rights and makes an exception for some and not for others. They would not allow me or my neighbors to build a multifamily house [. . .] Projects like
that create a deep distrust of the authorities and resentment among citizens who feel
these projects are being shoved down their throats.
It is doubtful that any amount of communication earlier in the development process would
have changed this interviewee’s mind. Nevertheless, the CAN-DO development was an
unusual case where the city invested in the property before plans were set into motion.
Had the neighborhood been brought into the process before Newton assisted CAN-DO’s
purchase, perhaps the concerns and fears of some opponents may have been mitigated.
Neighborhood Change
According to Kruse, the neighborhood has experienced very little turnover since the
completion of Kayla’s House. Even though people once felt threatened by the prospect
of nine units being built on a lot of less than an acre, today most people don’t seem to
give the development much thought. Kruse is not aware of any complaints or issues
from the neighborhood since the development has been occupied.49 The division of
the neighborhood over the development process may have had some lingering effects.
28
ON THE GROUND: 40B Controversies Before and After
Freiberg-Dale also noted that neighborhood block parties seemed to cease right around
the time of the controversy. She stops short of suggesting that the disputes resulting
from this process caused this decline in block parties. However, she does recall that some
opponents became increasingly hostile toward the neighbors, and some relationships have
not recovered.50
Jason Rosenberg maintains that the residents of Kayla’s House have become a part of the
neighborhood.51 The site looks very nice, and is well maintained, 52 suggesting that locating
the development here has not caused wholesale change to the neighborhood. What may
also contribute to the community’s acceptance of the development is the fact that during
the process, it was learned that the Newton Housing Authority owned a house in the
neighborhood. Michael Kruse posits that this may have put some of the residents’ fears to
rest about public housing not fitting in with the neighborhood.53 In fall 2008, Josephine
McNeil received a call from a resident of the neighborhood who wanted to let CANDO know that she would soon be selling her house, if they were interested. Josephine
explained that because of past controversies, CAN-DO no longer develops housing in
that neighborhood. The woman disclosed that she had been a member of that opposition,
but now she felt so bad about it, because the site looks so beautiful and the neighborhood
did not change as was originally feared.54 A current NCSC employee involved with the
Young Parents’ Program has also confirmed that a few children living in the Kayla’s House
Development have made friends with neighborhood children.
Environmental Threats and Impact on Public Health
The concerns outlined in the ZBA
files have not been realized. Since
the DEP inspection of the chemicals
manufacturer in June 2000, the
Newton Health Department
confirmed that no additional action
has been taken to mitigate potential
environmental or health concerns
in the neighborhood. Amy Yuhasz,
Community Development Program
Manager with the City of Newton
Planning and Development also
confirmed that no studies or tests
have been requested or performed
at the development related to the
abutting chemicals factory.
Traffic
Concerns over the increased traffic
and the risk of more accidents have
also not come to pass. The Newton
City Traffic Engineer confirmed that
no post-occupancy traffic studies have
been requested or commissioned
since the Kayla’s House Development
Photo credit: CAN-DO
ON THE GROUND: 40B Controversies Before and After 29
Summary of Controversies and Outcomes
Controversy
Concern
Outcome
Community Process
• City of Newton provided
developer with financial support
before the community is
approached about the proposed
development
• City of Newton inserted
strong recommendations for
developers to elicit community
input early in future 40B
permitting process
Neighborhood Change
• Fears that transitional housing
would bring wayward women,
dangerours men, drug addicts
and delinquent children
• Kayla’s House residents keep to
themselves
• Neighborhood residents have
largely accepted these residents
Environment/Public
Health
• Noise and air pollution would
adversely impact the health of
incoming residents
• Construction would detract
from green buffer zones between
industrial and residential areas
• No subsequent complaints
regarding the environment
and public health have been
reported the the Newton
Health Department
• Additional tree screening was
added to appease an abutter
• ZBA required developer to
agree to landscaping approvals
and yearly upkeep
Traffic
• The density of the proposed
development would bring too
much additional traffic to a
poorly maintained portion of the
street between two blind turns
• Christina Street has
experienced almost half as
many traffic accidents from
2003-2007 than the period
1996-2000.
Experience of Developer
• The developer’s lack of
experience in building market
rate units
• ZBA granted the
comprehensive permit with
34 stipulations, among them
requiring the contractor to
have 15 years experience and
at least 10 low and moderate
income housing projects in
their portfolio
Figure 9: Newton Controversy Summary
30
ON THE GROUND: 40B Controversies Before and After
was occupied. An analysis of Massachusetts Highway Department Crash Data Information
for the City of Newton from 2003-2007 revealed no increase in traffic accidents on
Christina Street as the neighborhood association had feared. In fact, while there were 13
accidents on Christina Street from 1996-2000, the period of September 2003 to September
2007 saw only seven traffic accidents on Christina Street.56 Rosenberg also stated that there
has been no discernable difference in traffic volume documented.57
Experience of the Developer
Evidence suggests that fears pertaining to the developer’s inexperience with producing
market rate units have been not been realized. All four condominium units of the Kayla’s
House Development experienced property value increases from FY2005 to FY2007.58
CAN-DO had constructed the Louis H. Garfield House in Newton Corner, three units of
transitional housing, before embarking on the Kayla’s House project. CAN-DO has since
thrived, producing another 26 units, 22 of which are deed-restricted affordable.59 This
speaks to the capability of the developer and the strong working relationship the developer
has forged with the City of Newton.
“I’ve seen
the city
become more
sophisticated
in knowing
what is going
to happen
with a 40B
[development].”
Conclusion
The story of the Kayla’s House Development can teach us something about how 40B battles
between municipalities and the Commonwealth can impact people at the neighborhood
level. Just as localities can feel betrayed by the Chapter 40B process when ZBAs permit a
40B project, or when the HAC overrides a local ZBA determination, local residents can feel
threatened by the imposition of zoning alterations without warning. It behooves localities
to engage neighborhood residents as early as possible in the community process when
introducing plans to add any new housing. Understanding the local context is also crucial.
One interviewee suggested that the demographics of the neighborhood might have helped
fuel the controversy. This person thought that some immigrant homeowners felt that the
inclusion of public housing in the neighborhood was unfair, when they had worked hard to
be able to afford a home in Newton.62
Communication and transparency on the part of municipal governments is a key component
to moving 40B projects through successfully in order to mitigate potential conflict that
might arise when residents feel threatened by the introduction of affordable housing
in their neighborhoods. Just as Newton enhanced the attention heeded to community
concerns earlier in the 40B process, other communities seeking to take a more proactive
approach to dealing with the creation of affordable housing might benefit from enhancing
and formalizing the inclusion of local residents toward these ends. “Grassroots” approaches
to enhancing the community process may instill a sense of agency in the process for many
localities, and this could be extended to local residents.
Endnotes
1 U.S. Census
Bureau, Fact Sheet, 2000.
In accordance with the request of Newton Community Services Center to respect the
confidentiality of the participants of the Young Parents’ Program, references to the development and
its location in Newton are as non-descriptive as possible.
3 Newton Zoning Map, March 10, 2009.
2
ON THE GROUND: 40B Controversies Before and After 31
Michael Kruse, interview by authors, March 30, 2009. Only 1.1 percent of Newton’s 18.22
square miles was being used for industrial purposes (and another 1.5 percent for Mixed Use
development) and Industrial property was assessed at a value of $110,349,000 or 1.08% of total
property valuations (See City of Newton, “Demographic and Socioeconomic Profile,” 7-8).
5 City of Newton Assessor’s Database.
6 Rowland, “‘Affordability’ Gets New Meaning Lower-Priced Homes are Luring Mid-Income
Buyers.”
7 Josephine McNeil, interview by the authors, March 13, 2009.
8 Josephine McNeil, Prepared Statement.
9 CAN-DO, “The Christina Street Story.” The Stewart B. McKinney Homeless Assistance Act
of 1987 (which was renamed the McKinney/Vento Act in 2000), created a number of programs
administered by HUD and DHHS to provide housing and services to people who are homeless. The
Emergency Shelter Grant (ESG), preceding the McKinney Act in 1986, was eventually consolidated
with the McKinney Act and provides formula funding to states and localities for activities including:
conversion, renovation and rehabilitation of facilities and delivery of essential services (See
Schwartz, 211).
10 McNeil, Prepared Statement”.
11 Ibid
12 CAN-DO, “The Christina Street Story.” Community Preservation Act (CPA) funds are made
available to developers who produce housing affordable to those at or below 100% of Boston AMI.
See City of Newton, “Housing Programs & Services.”
13 Commonwealth of Massachusetts Land Court, June 29, 2000.
14 City of Newton Zoning Board of Appeals Docket #25-00.
15 City of Newton Zoning Board of Appeals Docket #12-01.
16 CAN-DO, “The Christina Street Story.”
17 Jason Rosenberg, interview by the authors, Newton, Massachusetts, March 30, 2009.
18 Pendall, 251.
19 Fisher, “Chapter 40B Permitting and Litigation.”
20 Michael Kruse, interview by authors, March 30, 2009. The term “friendly 40B” often refers
to the Local Initiative Program, where a developer first seeks approval of the local board of town
selectmen before applying for a comprehensive permit.
21 Rosenberg, interview by the authors.
22 McNeil, interview by authors.
23 Kruse, interview by authors.
24 McNeil, interview by authors.
25 Eileen Freiberg-Dale, interview by authors, April 2, 2009.
26 Ibid
27 McNeil, interview by authors.
28 Pomerantz, “Ready for the worst.”
29 Freiberg-Dale, interview by authors.
30 Helman, “It was a sight I had never seen.”
31 [Neighborhood association], Letter to Newton Health Department.
32 Massachusetts Department of Environmental Protection, Inspection Report
33 City of Newton Zoning Board of Appeals Docket #25-00.
34 Ibid, 6.
35 [Neighborhood association], Letter to Newton Health Department.
36 [Neighborhood association], Letter to Harold Meizler, Chair, Newton ZBA.
37 Roy Lamotte, Jr., Memorandum to Bob Merryman, Newton Planning Department.
4
32
ON THE GROUND: 40B Controversies Before and After
[Neighborhood association], Letter to Meizler. The abutter also challenged the suggested market
value of the proposed condo units. In the abutter’s view, CAN-DO’s market comparison utilized
single family residences with an average lot size of 14,248 square feet, but did not adjust for a
projected lot size for the proposed units of 3,694 square feet (See [Abutter], Letter to the Newton
ZBA).
39 [Abutter], Lette to the Newton ZBA.
40 City of Newton Zoning Board of Appeals, Docket #25-00, 5.
41 McNeil, interview by the authors.
42 Michael Kruse, interview by the authors.
43 City of Newton Zoning Board of Appeals Docket #25-00, 8.
44 McNeil, interview by the authors. CAN-DO received additional help from the City of Newton in
bringing the Kayla’s House project to fruition. In March, 2003, CAN-DO was accorded a $378,000
subsidy from Newton’s Community Preservation Act fund. With this money, the price of the three
market rate units would have been reduced from $425,000 to $300,000, allowing them to be sold
to Newton city employees earning about $80,000. Unfortunately, CAN-DO learned of the funding
too late in the process to make this arrangement work out, so the three units in question were sold
at market rates.
45 Trisha Guditz, interview by the authors, March 13, 2009.
46 City of Newton Zoning Board of Appeals, “Step by Step – The Comprehensive Permit Process.”
47 Trisha Guditz, interview by authors.
48 Rosenberg, interview by the authors.
49 Kruse, interviewed by the authors.
50 Freiberg-Dale, interview by the authors.
51 Rosenberg, interview by the authors.
52 Freiberg-Dale, interview by the authors.
53 Kruse, interview by the authors.
54 McNeil, interview by the authors.
55 Amy Yuhasz, interview by the authors, Newton, Massachusetts, March 13, 2009.
56 Massachusetts Department of Highway Department, Crash Data Information. Data was given
for the entire city of Newton and the authors analyzed this data for occurrences of Christina Street
accidents. The dates of September 2003 to September 2007 were used to approximate a four year
period of post-occupancy to compare with the four year period provided by the neighborhood
association to the Newton ZBA in 2000. The Newton Police Traffic Bureau confirmed that the
Bureau does not track accident statistics at the neighborhood level
57 Rosenberg, interview by the authors.
58 City of Newton, “Real Property Database.” Information for FY2004 was available for these units.
The property values of four directly abutting properties were also analyzed, and found to increase
from FY2004 to FY2007. All property values experience a decline from FY2007 to FY2008, while
all have maintained or slightly increase value from FY2008 to FY2009. It is beyond the scope of this
study to evaluate the causes of property value decline from FY2007 to FY2008.
59 CANDO, “Housing Table.”
60 According to the 2000 Census, Newton was 18 percent foreign born, with 15,116 of 83,829 born
outside the United States. According to more recent estimates, 16,417 (18%) of Newton’s total
population of 91,309 are foreign born (See: U. S. Census Bureau, American Community Survey,
2005-2007).
38
ON THE GROUND: 40B Controversies Before and After 33
34
ON THE GROUND: 40B Controversies Before and After
Chapter 6
W e l l e s l e y H a s t i n g s V i l l ag e
The permitting process for Hastings Village is unique among the case studies in this report because
of the intensity of the opposition and length of the permitting process.The neighborhood opposition
to this 52-unit rental development was primarily concerned with traffic, environmental impacts,
and the developer’s track record.When the project was constructed after a permitting process that
spanned over a decade, these concerns were ultimately not realized to the extent originally feared.
Wellesley Community Profile
The town of Wellesley boasts a unique mix of residences, recreation, and education.
With approximately 26,000 residents located 13 miles west of Boston,1 it is considered
a highly desirable suburb of Boston. Wellesley is home to Wellesley College, Babson
College, Mass Bay Community College, a host of private schools, and a renowned public
school system. As such, it is an attractive Boston suburb for those with the means to
afford the cost of living. According to 2007 ACS data, the median cost of a home in
Wellesley is $910,900 and it consistently ranks among the wealthiest communities in
Massachusetts.2 The town boasts a vibrant cultural scene and takes immense pride in its
town parks, preserves, and tree-lined streets.
Many Wellesley residents believe that its commitment to planning over the past century
is one of the main reasons it has remained a desirable and attractive community. Indeed,
according to the Town of Wellesley’s Comprehensive Plan: 2007-2017, “the town passed
a zoning law in 1925 and was a pioneer in the development of a planning board, a board
of survey, and a billboard bylaw.” Indeed, the town of Wellesley takes a great deal of
pride in controlling the look take the look of the community. While this has resulted
in a highly desirable and attractive community, it has not effectively created affordable
housing. Indeed, this has become a critical issue in the past decade; even town employees
ON THE GROUND: 40B Controversies Before and After 35
are not able to afford the costs of living in Wellesley. According to Brad Reed in the
Wellesley Townsman, “If scarcity creates value, then affordable housing for town employees
might be the most valuable commodity in Wellesley.”3
Although Wellesley has drafted guidelines to address its lack of affordable housing, these
plans do not reflect the realities of the housing market in the town, nor do they encourage
expediency. The Town’s comprehensive “Affordable Housing Guide” was voted and
approved at town meeting in 1989 and remains the guiding document for the creation
of affordable housing. Consider the first two of eight criteria in Wellesley’s Affordable
Housing Guide: “1. The predominantly single-family residential character of Wellesley shall
be preserved; and 2. Urban-scale projects are to be avoided.”4
Given the emphasis placed on preserving the present character of Wellesley’s housing
stock, proposals for dense developments have historically been confronted by heated
opposition, thus creating a contentious environment for the creation of affordable
housing. Logan Huffman, in a 1997 letter to the Town of Wellesley Housing Partnership
Committee in relation to the Hastings Village permitting process, argued, “Wellesley needs
the [Hastings Village] apartments, both market and affordable, much more than it needs
another five single family houses which will sell in the
low- to mid-$500,000s.”5
Wellesley
Demographics
Population
26,613
Area (square miles)
10.49
Race
90% White
6.4% Asian
1.6% Black
Median Household Income
(1999 dollars)
$86,052
Total Housing Units
8,861
Owner Occupied
83%
Rental Occupied
17%
Median Home Value
$548,100
Subsidized Housing Inventory (SHI)3
SHI Before Development
(1997)
4.54%
(396 units)
SHI After Development
(2008)
5.5%
(480 units)
Since Wellesley has never achieved the 10 percent
affordable housing quota, it has remained vulnerable
to development under Chapter 40B. The first housing
created under the Comprehensive Permitting Process
was a 125-unit apartment complex in Wells Square
constructed in 1974. The project was met with some
opposition; but given its location across the street
from a preexisting condominium development,
many believed the density was well suited to the
neighborhood.6 The Ardmore apartment complex
on Cedar Street has 36 rental units, all of which
are counted towards Wellesley’s affordable housing
stock. When the developer proposed changing these
apartments to condominiums, the town protested the
fact that the entire building would no longer count
towards Wellesley’s SHI. Instead, only nine units
would qualify. Years later, when the new building
owners were considering converting from partially
subsidized condos to expiring use condos, the
Supreme Judicial Court ruled in a landmark decision
that housing units created under Chapter 40B must
remain affordable in perpetuity.
Hastings Village
The decade-long debate over Hastings Village began
in June 1994. Developer Logan Huffman of Eastland
Partners applied for a comprehensive permit to
Figure 10: Wellesley Dmographics
Sources: 2000 Census Data, DHCD Community Profile, and
DHCD Subsidized Housing Inventory
36 ON THE GROUND: 40B Controversies Before and After
build an 87-unit, mixedincome rental housing
development on Hastings
Street. Wellesley’s Zoning
Board of Appeals rejected the
application, citing concerns
regarding the density of
proposed construction on
the 2.18-acre site and the
resulting impacts this would
have on environmental
contamination. Eastland
Partners reduced the size
of the proposed complex
and appealed to the state
Housing Appeals Committee,
Figure 11:Wellesley CIS Map
which ruled in favor of the
Map credit: Massachusetts CIS 2009
developer. The neighbors
appealed to the State
Superior Court, which again ruled in favor of the developer. Finally, after a six year legal
battle, the ZBA granted a comprehensive permit for the development of 52 units of
mixed-income rental housing in July 2002.7
The 2.19-acre tract of land now occupied by Hastings Village sits less than 200 yards from
Route 9 in Wellesley, close to the Route 9/Route 128 (Interstate 95) interchange. The land
is situated between a commercial area, a residential area, a school, and a town preservation
area. Located to the north is a commercial district, consisting of an office building, two
car dealerships, and an office building housing Harvard Community Health (now Harvard
Vanguard Medical Associates). To the south is the Sheridan Hills neighborhood, which is
almost entirely comprised of single-family homes. Across the street from the 2.19 acres
is Fiske Elementary School and directly behind the property is the Rosemary Brook Town
Forest.
The 40B permitting process for Hastings Village spanned over a decade. While this was
partially a due to the lengthy appeals process through Housing Appeals Committee and
Supreme Judicial Court proceedings, it was primarily due to the forceful and wellorganized opposition to the development.
Just up the hill from the site of Hastings Village sits the historic Sheridan Hills
neighborhood. Developed in the 1940s, the quiet, comfortable streets of Sheridan Hills
were named to commemorate presidents: Monroe, Madison, Jackson, and Jefferson. One
interviewee referred to Sheridan Hills as a “starter-home” area of Wellesley. With its singlefamily, New England colonial-style homes, it is a neighborhood where, according to the
Wellesley-Weston Magazine, “where stories of childhood sound like ‘Leave it to Beaver.’”8
Resident Ellie Everts agreed, “It’s a charming area, lively, humble. These aren’t big gaudy
houses, they’re warm and cozy homes.”9 According to longtime resident Donna Kemp, the
community is indeed tightly knit, “Everyone knows their neighbors and there’s so much
chatting, so much friendliness. That makes for a very close community.”10
ON THE GROUND: 40B Controversies Before and After 37
The strong sense of community in the Sheridan Hills neighborhood helps to explain
residents’ ability to quickly and efficiently organize a committee to oppose the first
Hastings Village proposal in 1994. According to one interviewee, word of the proposed
housing development spread quickly through the neighborhood, “I first heard from the
postman that the lot we thought would be developed for five houses had been sold to a
developer.” The neighborhood held their first organizational meeting in the Fiske School.
“There were about 100 houses in the Sheridan Hills neighborhood,” said Stanley Brooks,
a neighbor and early organizer against the development. “We were concerned that the
original 87-unit proposal would just about double the population of our neighborhood.”11
This was not the first time the neighborhood had come together in the interests of their
neighborhood. Indeed, there had been many battles prior to Hastings Village. “We got a
traffic barrier installed on Hastings Street to prevent access from the commercial area
off of Route 9 because the car dealership was test driving through our neighborhood,”
said one interviewee. “We were also instrumental in creating the conservation land and
water protection area and we played a role in the construction of the Harvard Community
Health building.” Clearly, the neighbors were preparing for the long haul. “At one point we
set ourselves up as a nonprofit to get contributions,” said one interviewee. “This allowed us
to maintain a lawyer throughout a good part of the process.”
On the Ground: Before
Although consensus was rare among the main players in the Hastings Village development,
all parties agreed that the Hastings Village comprehensive permitting process was long,
drawn-out, and steeped in controversy. “I’ve worked on 100 or so 40B developments, and
Hastings Village in Wellesley is easily the most controversial,” said Bob Engler, consultant
to the developer.12 Although the permitting and appeals process lasted over ten years,
the main concerns and controversies remained largely unchanged throughout the entire
ordeal.
Density
The density of the Hastings Village development was of primary concern to the town and
the abutters throughout the entire permitting process. The original application for an
87-unit development was met with intense scrutiny and disapproval. In the Zoning Board
of Appeals’ 1995 permit rejection, the board found that “the proposed site is located in a
15,000 square foot district, in which one dwelling per lot is allowed. Five single-family
dwellings could be constructed on this lot. The density of this project is 40 units per acre,
or 39 percent denser than allowed in any zoning district in the town.”13
One interviewee thought that the density of the project, both in the original proposal
(87 units) and after it was reduced to 52 units, was out of character with the Sheridan
Hills neighborhood and the town as a whole. “Typically, lots are 10-15 square feet or a
quarter acre. If you extrapolate what that would be with 52 units it’s quite a difference
from what was being proposed. It’s something you’d find in Cambridge or Brookline,
not in Wellesley.” The ZBA agreed in its 1995 decision, concluding that the “height of
this building [five stories] is totally inappropriate for the site and incompatible with its
surroundings.”
38
ON THE GROUND: 40B Controversies Before and After
Located to the north of the Hastings
Village Site (red) is a commercial district
(purple), consisting of an office building,
the Silver Lake Dodge dealership, and
an office building housing Harvard
Community Health. To the south is the
Sheridan Hills neighborhood (orange),
which is almost entirely comprised of
single-family homes. Across the street
from the 2.19 acres is Fiske Elementary
School (yellow), and directly behind the
property is the Rosemary Brook Town
Forest (blue).
Figure 12: Hastings Village CIS Map, Copywrite Google Maps, 2009.
Another interviewee agreed that this was of special concern to the Sheridan Hills
Committee. “We [the neighborhood opposition] looked at other instances of moderate
income housing being developed under Chapter 40B across the state. We didn’t find
anything analogous to Hastings Village, the original proposal of 87 units seemed to be
setting a significant precedent in terms of mass and density. Even when it was reduced to
52 units, it seemed much too large for the acreage.”
But, according to Engler, density per se is not a viable argument in opposition to a
40B development, particularly in the case of Hastings Village. “There are no density
requirements on the books. Our analysis showed there were other developments in the
town and in the state with similar density to the 87-unit proposal and certainly the 52-unit
final construction.”14 The HAC agreed; and in its June 11, 2002 decision ruled that the site
was suitable for some use denser than single-family residences, as it was “transitionally”
located between a dense, heavily used commercial district and a residential district
zoned for single family homes.15 As Huffman wrote in a Wellesley Townsman editorial,
“The site is well separated by height, by distance, and also visually from the adjacent
neighborhood and has only two residential abutters.”16 Indeed, Engler noted that, from a
planning perspective, the Hastings Village site was the ideal location for transition from a
commercial area to a residential neighborhood. “We weren’t blocking anyone’s view or in
anyone’s backyard.”17
Still, disdain for density and development in general seemed to be the underlying reasons
for the intense opposition of the Sheridan Hills Committee. Although density may have
been the motivation for opposition, as consultant Engler said, the neighbors were smart
enough to couch it in other terms. “In blue-collar communities, people say it like they
mean it. In Wellesley, they’ll cite the danger of cadmium-wear contamination.”18
Stanley Brooks said that the expertise of the neighborhood residents was key to the
approach of the neighborhood association in opposition to the development. “We had
ON THE GROUND: 40B Controversies Before and After 39
Photo credit: Shannon Moriarty
lawyers, environmentalists, engineers, and people who are knowledgeable in all areas that
needed to be addressed in these proposals.” Thus, although density was a key concern of
the Sheridan Hills neighborhood, it was understood that other, more pertinent arguments
would be of interest to the Zoning Board of Appeals.
Several members of the neighborhood indicated that they were uncomfortable with the
idea of apartment units in a neighborhood comprised of single-family homes. According
to Brooks, “People in rental units don’t have the same investment in the neighborhood as
property owners.” This also changed the way the Sheridan Hills Committee approached
their handling of the development in relation to the Fiske School, located right across the
street. Rather than raising concern over the number of school children overwhelming the
school system, the safety of the children was the primary issue. Since the rental housing
was presumably better suited towards households without children, one neighbor wrote in
a letter to the ZBA that “families without children would probably be less concerned with
the school than families with children,” thus compromising their safety.19
Traffic
Years before the first comprehensive permitting process began for Hastings Village,
residents of Sheridan Hills had organized to have a barricade installed at the base of the
hill on Hastings Street, essentially cutting off access to Route 9 from the Sheridan Hills
neighborhood. Early in the permitting process, Eastland Partners conceded that this
barricade would be moved up the hill to prevent future residents of Hastings Village
from accessing Cedar Street and the Sheridan Hill neighborhood via Hastings Street. This
meant that the only access for residents of the development would be from Worcester
Street (Route 9). The goal of this early concession, according to Bob Engler, was to make
traffic volume a “non-issue” during the permitting process.20 Indeed, this was ruled the
“preferred option in relation to traffic safety.”21
Despite this early understanding that Hastings Village would not be accessible through
the streets of Sheridan Hills, this remained a key concern of several residents. “My initial
40
ON THE GROUND: 40B Controversies Before and After
concern, upon hearing about the proposed development, was putting 87 or 52 units of
housing on less than two-and-a-half acres of land,” said one interviewee. “If you have two
cars per unit, that’s a significant amount of traffic.”
Although the Sheridan Hills Committee was not worried about traffic volume through the
neighborhood, the Town of Wellesley’s traffic consultants were still concerned about safety
issues. As a result of the relocated barrier, the Worcester Street (Route 9)/Cedar Street
intersection and the Worcester Street/Hastings Street intersection would be affected by
the Hastings Village development. The Worcester Street/Cedar Street interchange was
recognized by the Mass Highway Department as one of the top 100 high accident sites in
the state. Thus, the state agency implemented changes to the road in 1995 to address these
safety concerns.22
“In blue-collar
communities,
people say it like
they mean it. In
Wellesley, they’ll
cite the danger
of cadmium-wear
contamination.”
While the town traffic consultants ruled that the additional volume of the initially
proposed 87-unit development would not impact the interchange, the addition of
residential units to this largely commercial area was identified as problematic. In 1995,
police records show only one accident in three years at the Hastings Street/Worcester
Street intersection, a rate the traffic consultant deemed “remarkable” in light of the current
design and the volume of commercial traffic.23 The addition of dense housing, the ZBA
argued, would bring with it motorists traveling at all hours of the day and night. Thus,
the ZBA concluded this could result in a “dramatic change in this accident record.”24 The
specific elements that could lead to “potentially hazardous” traffic issues with the addition
of Hastings Village were the limited sight distance for cars exiting Route 9, the danger of
vehicles making right turns from Hastings Street onto Worcester Street, and the danger to
vehicles making left turns into Hastings Street from Worcester Street westbound.
Environment, Health and Safety
The town forest, which encompasses the Rosemary Well and Longfellow Well, directly
abuts the rear of the Hastings Village site. The preservation of open space is typically of
special concern to neighborhoods, and Sheridan Hills was no different. As one resident
wrote in a letter to the Zoning Board of Appeals, “The natural resources jeopardized by
this development can never be renewed. The town forest is vulnerable, the water supply is
vulnerable, and the existing vegetation and greenery are vulnerable. This vital and nonrenewable area must be protected from the run-off and pollutants naturally associated with
a development the size and scope of Hastings Village.”25
From the beginning of the permitting process, the developer planned on connecting the
Hastings Village sewage line to the town system. There were two alternatives for making
this connection, which were critiqued and modified throughout the permitting process.
The first option was to lay the sewer pipe through the rear of the property, through the
town forest, and connecting to the town sewer trunk on the Waterworks. The downgrade
of the forest would allow for a gravity line rather than incur the expense and requirements
of a pump system. According to Duggan, the town was concerned that cutting through the
town forest would be overly invasive and not easily accessible for maintenance and cleaning
without affecting the wooded preserve land.26
The second alternative was to tie into the existing sewer on Hastings Street. Since the
grade of the proposed connection is flat, Duggan contended that it would be prone to
clogging and backup which could, in turn, contaminate the town water supply. Although
ON THE GROUND: 40B Controversies Before and After 41
neither alternative proposed by the developer for connecting to the town sewage main
was entirely satisfactory to town government officials, the second alternative was deemed
preferable by the Zoning Board of Appeals when the Supreme Judicial Court ruled that the
project move ahead.
Storm water drainage was also a concern from the very beginning of the Hastings Village
permitting process, in particular, the potential for contaminating the Rosemary Well.
Many believed that, if proper measures were not taken to thoroughly assess the building’s
footprint, the town’s water source would be vulnerable to contamination during both the
construction of the development and once the buildings were constructed.
The drainage plan in the 2002 Comprehensive Permit placed the drainage system at
the bottom of the basin, did not retain storm water, and outflow poured directly onto
Waterworks land (i.e. the town water supply). Woodward & Curren, authors of the town’s
site drainage assessment, expressed concerns about the site’s drainage plan, “Contaminants
in parking lot runoff and any careless or accidental spills are sent directly to the aquifer
with no possibility of detection or renovation.”27 Thus, with the addition of an impervious
parking lot, impervious roofing, and the resulting concentrating of drainage, town officials
were concerned that the outflow would be “dumped into one spot onto Waterworks land
within proximity of the town wells.”28
Finally, the developer’s plan to use existing infrastructure for storm water runoff also
concerned town officials. Duggan questioned the viability of this plan, stating that the
existing storm drainage on Hastings Street did not have the appropriate capacity to handle
any additional drainage.29 A consultant for the town recommended an 18-inch pipe for the
Hastings Street storm drainage system, deeming the existing 10-inch pipe inadequate.30
Developer’s Track Record
The Zoning Board of Appeals recognized in its 1995 rejection of the Hastings Village
application that the developer’s track record is “not usually within the province of the
Board of Appeals, as it is more properly the concern of the subsidizing agency.”31 But
because there was no subsidizing agency to provide oversight, the developer’s track record
and experience became a key controversy and concern of the opposition.
Brooks was wary of the intentions and track record of developer Logan Huffman from the
start. “I ran into him one day at the site when I was out walking my dog. He told me he
didn’t care if neighbors weren’t happy about the apartment buildings; he was building to
earn his retirement money.”32 Several interviewees stated that Huffman’s track record was
questionable: his most recent project, single family homes on Upwey Road in Wellesley,
resulted in several lawsuits for shoddy construction and failing to comply with contractual
obligations. It was also known that he left a subdivision in Ashland unfinished, opting to
pay off the town rather than complete the project.
The Sheridan Hills Committee highlighted their concerns regarding the developer in a
leaflet distributed to the neighborhood: “To our knowledge the developer has no previous
experience building a project of this size or scale or managing an apartment complex.
At the September 29th ZBA public hearing, testimony was presented regarding the
developer’s prior construction projects and the problems which have been encountered as
a result of the developer’s actions or inactions.”33
42
ON THE GROUND: 40B Controversies Before and After
Still, one interviewee felt the scrutiny of Logan Huffman was exaggerated. He was,
after all, a fellow resident of Wellesley building on land that he rightfully owned. “There
are things Logan Huffman was accused of doing that I think would even surprise Logan
Huffman. To a degree, he got a rap he didn’t deserve. He wasn’t doing anything horrible or
outside the law. He was just the villain.”
Property Values
In Wellesley, the half-million dollar homes of the Sheridan Hills neighborhood are mostly
occupied by “college professors, lawyers, engineers, teachers, and other highly educated
people who tend to be Democratic,” said one interviewee. “We’re not the wealthy
businessmen or conservative financiers. There aren’t many areas of Wellesley where you
can easily point out two to four blocks of people who tend to vote Democrat, but this is
one of them.”
Yet, even if residents of the neighborhood are progressive or proponents of affordable
housing, people tend to look at their property investments in terms of resale. “A
development may not bother someone who lives there now, but they may be thinking
about whether it might be a concern to the next person who will live there,” said Rick
Brown, retired town planner for Wellesley. “The neighborhood you live in is a big thing to
“Although the road block
separating Hastings Village from
the Sheridan Hills community
was a point of agreement between
the developer and the neighbors,
it seems to isolate the people
in the development from the
Sheridan Hills neighborhood,
which is very unwelcoming.”
-Former Town Planner Rick Brown
Photo credit: Shannon Moriarty
ON THE GROUND: 40B Controversies Before and After 43
people in suburban areas. When you buy a house in a wealthy community like Wellesley,
you don’t want to be in the neighborhood with “it” in it. It’s human nature, not because
they are bad people.”34
On the Ground: After
The Hastings Village Rental Community has been constructed and occupied since 2005.
Eastland Partners, the original developer, remains the property owner and manager.
According to Karen Fromm, the Hastings Village Property Manager, the controversies that
consumed the Sheridan Hills neighborhood for over a decade seem to be unknown to the
people living in Hastings Village apartments today.
Nevertheless, the addition of 52 units of housing to the Sheridan Hills neighborhood has
certainly had impacts, large and small. Residents of the neighborhood have noticed slight
changes in their neighborhood since the addition of the Hastings Village development.
Brooks pointed out that the exterior lighting in Hastings Village allows him to “see his
shadow in the middle of night.” Another interviewee agreed, “The building’s exterior
lighting is extremely bright and shines in the wrong places at the wrong times.” Noise
pollution has also become more noticeable to some neighbors: the removal of 2.2-acres
Photo credit: Shannon Moriarty
44
ON THE GROUND: 40B Controversies Before and After
of wooded area means there is less of a buffer between Route 9 and the Sheridan Hills
neighborhood.
With the addition of people, one resident has noticed more unfamiliar faces walking
around the neighborhood. “The intensity of people,” said Brooks, “has brought an intensity
of dog droppings.”35 Yet, other neighbors who had taken part in the organization against the
development have not noticed an impact at all. According to another interviewee, “For the
most part, it’s out of sight and out of mind.”
Traffic
Many of those interviewed for this study believe that the placement of the barrier at the
north end of the development was key to mitigating traffic impact in the Sheridan Hills
neighborhood. Although, Brooks points out that traffic has not gone completely unnoticed.
“The barricade doesn’t show up on most GPS systems or in online maps, so you still get a
lot of delivery vehicles, lost cars, and taxis dropping people off at the top of the hill.”36
Several Sheridan Hills neighbors believe that the dangers of the off-ramp have not been
adequately addressed, “It is potentially really dangerous for residents of Hastings, cars
come off Route 9 fairly quickly and it’s a blind turn.” Another interviewee added, “Traffic
off Route 9 was already an issue with the car dealership and Harvard Community Health
Care, but Hastings has added more cars to the area.”
“The
neighborhood
you live in is
a big thing
to people in
suburban areas.
When you buy
a house in a
community like
Wellesley, you
don’t want
to be in the
neighborhood
with “it” in it.”
City officials confirm that concern over traffic issues related to Hastings Village have not
been realized to the extent feared. However, some of the steps taken to mitigate traffic
concerns have had other, unrelated effects. “Although the road block separating Hastings
Village from the Sheridan Hills community was a point of agreement between the
developer and the neighbors,” said former town planner Rick Brown, “it [the road block]
seems to isolate the people in the development from the Sheridan Hills neighborhood,
which is very unwelcoming.”37
Environment, Health and Safety
During the development process, the sewer requirements were altered to allow for the
installation of a gravity pump through the town forest. After so much scrutiny of the
sewer lines and their environmental implications, this change seemed to happen without
the Sheridan Hills Committee’s knowledge. “Interestingly, the developer did not connect
to the Hastings Street sewer line as we thought, but to another sewer line through the
town forest,” said one interviewee, “he saved a great deal of money because he was able
to use a gravity line instead of a pump, thus circumventing the requirements of a pump.”
But according to town officials, this connection to the town sewer main had no negative
impacts on the town’s infrastructure or damaging environmental impacts whatsoever.
Retired Town Planner Rick Brown considered the Sheridan Hills Committee’s drainage
concerns a red herring from the start. “If there was truly concern about pollutants in the
town well, why wasn’t there concern about the automobile dealerships within 50 feet of
the well, closer than Hastings Village? Or Route 9 and the potential for a hazardous waste
truck overturning?”38
In the years before the Hastings Village development process began, several projects in
Wellesley’s Water Supply Protection Districts were approved without dispute, such as
ON THE GROUND: 40B Controversies Before and After 45
projects for Babson College, Silver Lake Dodge, and Wellesley Toyota. “The zoning by-law
clearly gives the town the authority to have improvements completed if a risk actually
exists,” wrote Huffman in a letter to the Wellesley Housing Partnership Committee.
“Given the way all other projects are reviewed one can only conclude there is no risk until
the project includes affordable housing.”39
Since the development of Hastings Village, city officials confirmed that there have been no
issues with the storm water draining system. In addition, there has been no contamination
to the Rosemary Well or the Rosemary Brook Water Supply Protection Area.
Summary of Controversies and Outcomes
Controversy
Concern
Outcome
Traffic
• The addition of residential units
will increase the volume of
traffic coming off of Route 9,
causing potential safety issues
and increasing threat of accidents
• No increase in accident incidence
Environmental Impacts
• The building footprint would
impact runoff from the
development into the town
water supply, causing potential
for contamination
• No known impacts
Infrastructure Impacts
• Existing sewer lines could not
accomodate the additional
output from a dense
development
• No known impacts
Developer’s Track Record
• The developer would not follow
through on project or create a
shoddy development that might
be an eyesore
• Development looks nice and is
well-maintained
Property Values
• The addition of a dense
development of rental housing
units would decrease the
property values of abutting
properties
• Property values have not been
affected
Figure 13:Wellesley Controversy Summary
46
ON THE GROUND: 40B Controversies Before and After
Developer’s Track Record
“I’ll be the first to tell you that in spite of my fears, it’s a nice-looking development,” said
one interviewee, echoing the resounding sentiment among the Sheridan Hills residents
interviewed. Nevertheless, some residents feel that the condition of the buildings, and the
ability of the developer to effectively maintain them, can only be determined once more
than four years has passed. “The buildings are fairly new, they aren’t really old enough to
have required significant maintenance,” said Brooks. “We won’t know for another five to
ten years how these buildings will hold up.”40
“I’ll be the first
to tell you, it’s
a nice-looking
development.”
Property Values
Anecdotal evidence confirms that properties in the Sheridan Hills neighborhood have not
been impacted by the construction of Hastings Village. One homeowner who has lived
in the neighborhood for over 20 years, confirms that, “this development has not had any
effect on my property value.”
Conclusion
Countless town officials, speculators, consultants, Sheridan Hills residents, and other
individuals were involved in the decade-long battle to develop Hastings Village. Over a
decade of hard work and debate went into the process to create a housing development
that increased Wellesley’s affordable housing stock while meeting the preferences of the
neighbors. Millions of dollars in private investment and public resources, not to mention
thousands of volunteer hours and paid time, were dedicated to the process of developing
Hastings Village. Although the outcome was not what all of the key players wanted, none
of the people interviewed for this study expressed regret for their involvement in the
process.
One resident feels that the project would not have turned out as it did if not for their
scrutiny of and involvement in the project. “I like to think that the reason the development
is 52 units instead of 87 is because of our neighborhood involvement,” one interviewee
said. “If there was more I could have done to make it a 12- or 24-unit development, I most
certainly would have done it.”
“I’ve learned that what we have there is not horrible, of course,” said one interviewee.
“Clearly, one of the best ways you can bring affordable housing to a community is by
building something a little more dense than what the zoning allows, and by incenting
developers to do that.” One positive result of the Hastings Village process is that many
of the community members who were involved have gone on to play key roles in town
government posts, as housing advocates and as participants in the town’s planning process.
Still, an important question remains: has the focus on affordable housing effectively
increased Wellesley’s stock of SHI units since the Hastings Village permitting process?
No. Wellesley’s SHI currently accounts for 5.5 percent of all residential units in town,
according to the DHCD SHI Inventory. No new affordable units have been created
since Hastings Village was constructed in 2005, so the town is still vulnerable to 40B
developments.
ON THE GROUND: 40B Controversies Before and After 47
Although Wellesley has not met the 10 percent SHI threshold, residents are no more
receptive to 40B developments today than they were in 1994. In February of 2007, the
chairman of the Wellesley Housing Development Corporation lobbied for the creation
of five townhouse-style units, one of which would be affordable. The neighborhood’s
reception to this plan can only be described as déjà vu. According to the Wellesley Townsman,
“the proposal was met with skepticism and disapproval from neighbors and abutters, who
said the proposed development was too dense, and that it would alter the character of
Washington Street.”41
Endnotes
U.S. Census Bureau, Census of Population and Housing, 2000: Summary Population and Housing
Characteristics: Wellesley, Massachusetts.
2 U.S. Census Bureau, 2005-2007 American Community Survey 3-Year Estimates: Summary
Population and Housing Characteristics: Wellesley, Massachusetts
3 Reed, “Affordable housing still an elusive goal”
4 Wellesley Housing Development Corporation, “Affordable Housing Policy for the Town of
Wellesley,” adopted by the 1989 Town Meeting under Article 31 and amended by the 1997 Town
Meeting under Article 42, http://www.ci.wellesley.ma.us/Pages/WellesleyMA_Selectmen/
appoint/whdc (accessed April 3, 2009)
5 Huffman, “Eastland Partners to the Town of Wellesley Housing Partnership Committee”
6 Rick Brown, interview by author, March 23, 2009
7 Town of Wellesley Zoning Board of Appeals, “Amended Comprehensive Permit for Hastings
Village, Inc. 54-66 Hastings Street”
8 Hinchliffe, “House Holiday Tour” (accessed April 2, 2009)
9 Ibid
10 Ibid
11 Stanley Brooks, interview by the authors, March 26, 2009
12 Bob Engler, interview by the authors, April 3, 2009
13 Town of Wellesley Zoning Board of Appeals, “Amended Comprehensive Permit for Hastings
Village,” 51
14 Engler, interview by the authors
15 Massachusetts Housing Appeals Committee, Wellesley Zoning Board of Appeals & others v.
Housing Appeals Committee & others
16 Huffman, Guest Column
17 Engler, interview by the authors
18 Brooks, interview by author
19 LaButti, “Sheridan Hills Resident to the Town of Wellesley Zoning Board of Appeals”
20 Engler, interview by the authors
21 Ibid
22 Town of Wellesley Zoning Board of Appeals, “Amended Comprehensive Permit for Hastings
Village,” 44
23 Ibid
24 Ibid
25 Strapp, “Sheridan Hills resident to Town of Wellesley Zoning Board of Appeals”
26 Town of Wellesley Zoning Board of Appeals, “Amended Comprehensive Permit for Hastings
Village,” 5
27 Town of Wellesley Zoning Board of Appeals, “Amended Comprehensive Permit for Hastings
Village,” 39
1
48
ON THE GROUND: 40B Controversies Before and After
28
Ibid
29 Town
of Wellesley Zoning Board of Appeals, “Amended Comprehensive Permit for Hastings
Village,” 41
30 Ibid, 40
31 Brooks, interview by the authors
32 Sheridan Hills Committee, Hastings Street Update
33 Brown, interview by the authors
34 Brooks, interview by the authors
35 Ibid
36 Ibid
37 Brown, interview by the authors
38 Ibid
39 Huffman, “Eastland Partners to the Town of Wellesley Housing Partnership Committee”
40 Brooks, interview by the authors
41 Reed, “Affordable housing still an elusive goal”
ON THE GROUND: 40B Controversies Before and After 49
50
ON THE GROUND: 40B Controversies Before and After
Chapter 7
W e s to n D i c ks o n M e a d ow
Dickson Meadow, an 18-unit, mixed-income homeownership development, was one of Weston’s first 40B
projects. Developed under the Local Initiative Program, and on land donated by residents for this purpose,
the proposal received significant support and input from town officials and residents. Opposition to the
project came exclusively from neighbors who wanted to lower the project’s density in order to mitigate a
host of potential problems. Weston’s Board of Appeals approved The Community Builders’ comprehensive
permit application, allowing the developer to build the total number of units sought, with few conditions
attached.Though the density of the project was not lessened as opponents had hoped it would be, it seems
that the potential negative impacts of Dickson Meadow that opponents feared have not been realized.
Weston Community Profile
Weston is a quaint and scenic suburb of Boston, located 12 miles west of the city. This largely
residential community is one of the wealthiest in the state. Residents are proud of Weston’s
reputable schools and beautiful homes in quiet and well-maintained neighborhoods. Another
of Weston’s distinct features is its over 60 miles of hiking and horseback riding trails, golf
courses, parks, ball fields, and other carefully preserved open space.1
Dickson Meadow
Dickson Meadow was the third development in Weston to successfully include affordable
housing units. The two mixed income developments built before Dickson Meadow were
each unique. Built at a former school site, the Brook School Apartments, opened in 1979,
features 75 apartments for people who are over age 62 or are handicapped. Of these 75
units, 55 are subsidized units funded through the HUD Section 8 program. The remaining
units are supported by Weston’s Community Preservation Funds.2 Winter Gardens, a 50-unit
ON THE GROUND: 40B Controversies Before and After 51
homeownership condominium complex along Route 30, was completed in the 1990s, and
was Weston’s first development completed under Chapter 40B.
Dickson Meadow differed from these earlier developments because it grew out of a
family’s vision for their land; and because it encountered controversy despite the fact that
its planning closely involved town officials and residents. In December 1997, Edward and
Priscilla Dickson donated 10.8 acres of their property to a non-profit developer for the
purposes of developing a mixed-income housing development on the site. The recipient
was The Community Builders, Inc. (TCB), an experienced affordable housing developer in
the Boston-area. TCB agreed to work with the Dicksons and their advisory board of town
residents who had experience developing housing, to plan for Dickson Meadow. The site
that the Dicksons selected had been undeveloped land in a neighborhood of single-family
houses and more open space.3 The Dicksons and the Paine Estate, were the property’s only
direct abutters. In fact, the closest structure to the site was 105 feet from the southern
property border of this parcel, and was owned by the Dicksons.4 Other adjacent parcels
were large, undeveloped tracts of wooded land owned by the Paine Estate. Parcels beyond
these abutters contained single-family houses.5 The land in this area of town was zoned
for single-family houses each sited on 60,000 sq. ft.
minimum sized lots. In other words, a maximum of
.73 units were allowed per acre.6
weston
Demographics
Population
11,469
Area (square miles)
17.34
Race
90.3% White
6.8% Asian
1.2% Black
Median Household Income
(1999 dollars)
$153,918
Total Housing Units
3,718
Owner Occupied
86.1%
Rental Occupied
13.9%
Median Home Value
$739,200
Subsidized Housing Inventory (SHI)
SHI Before Development
(1997)
2%
(76 units)
SHI After Development
(2008)
3.5%
(133 units)
Figure 14: Weston Demographics
Sources: 2000 Census Data, DHCD Community Profile, and DHCD
Subsidized Housing Inventory
52
On the Ground: Before
At the beginning of the planning process, the Dicksons
and their Advisory Committee established key
objectives of the mixed income development that
they envisioned for this property: 1) to provide a
minimum of six affordable homes in a mixed-income
community; 2) to develop a total of 18 single family
homes (12 were to be sold at market or moderate
rates), in order to support six affordable homes
and create a stable, balanced community; and, 3) to
preserve as many trees and as much open space as
possible, particularly with respect to the meadow that
runs across the front of the development site, along
Highland Street.7 In March 1998, Weston’s Housing
Needs Committee approved a design concept for
Dickson Meadow.
In May 1998, the Weston Board of Selectmen
endorsed the development in connection with an
application to the Local Initiative Program (LIP).
Sometimes known as the “friendly 40B” process, LIP
is “a state program that encourages the creation of
affordable housing by providing technical assistance
to communities and developers who are working
together to create affordable rental opportunities for
low- and moderate-income households.”8 According
to TCB, the application was the product of their close
ON THE GROUND: 40B Controversies Before and After
collaboration with the Dicksons,
their Advisory Committee, and the
Board of Selectmen; and it reflected
“their effort to plan a development
that will meet the town’s need for
affordable housing, within a selfsustaining project with a sensitive
and suitable design that will fit
the look and feel of the Town.”9
In addition, a written agreement
between TCB, the Dicksons and
the Board of Selectmen guaranteed
the town the right to participate in
development team meetings and to
approve all significant aspects of the
development.
Figure 15: Weston CIS Map
Map credit: Massachusetts CIS 2009
TCB applied to Weston’s Board of
Appeals for the comprehensive permit to build Dickson Meadow under Chapter 40B, after
having received DHCD’s approval under LIP. According to TCB, the design for Dickson
Meadows was consistent with standard health and safety practices, retained as much open
space as possible, was attractively designed, and met the town’s affordable housing need.10 A
broad range of community members agreed with this vision for Dickson Meadow, as letters
submitted with the project’s LIP application indicate.11
Polly and Edward Dickson’s idea to donate their land for the creation of affordable housing
came from the unlikeliest of sources: a Weston resident who was opposed to affordable
housing development. According to Dixon, “At a town meeting, I heard someone ask ‘why
don’t you spread the affordable housing throughout the town instead of having it all right
where we are?’ I thought, ‘Well, that sounds like a good idea – we should build some here.’”
They did not think a housing development would inconvenience anyone, since they didn’t
have any neighbors in close proximity. “The development would be next to us, and the other
end of it was vacant,” said Dixon. “We did not know where any potential opposition would
come from. As it turns out, they [opponents] surfaced all up and down Highland Street.”12
As Dickson indicated, some neighbors strongly opposed the Dickson Meadow plan. In fact,
documented opposition to the project came exclusively from neighbors to the development
site. Shortly after TCB proposed Dickson Meadow, some neighbors organized the Highland
Area Neighborhood Association, which lobbied town officials to purchase the land in order
to control its development. In the neighbors’ own words, “We live in the Highland Street
area and support the proposed creation of affordable housing units on Highland Street.
However, we are concerned about the site plan, density, preservation of trees and open
space, building architecture, and other similar matters. If done correctly, this development
can be an asset to the neighborhood and to the town. But any land development, if done
incorrectly, will be a permanent mistake….”13 As outlined above, those in opposition to
Dickson Meadow raised concerns over density and the destruction of open space, mainly,
but also to the site plan and architecture proposed for Dickson Meadow.
ON THE GROUND: 40B Controversies Before and After 53
Density
“The development
would be next to
us, and the other
end of it was
vacant.We did
not know where
any potential
opposition would
come from. As it
turns out, they
[opponents]
surfaced all
up and down
Highland Street.”
All of the concerns raised by opposing neighbors were centered around issues of density.
Reducing the density, opponents claimed, could solve multiple problems that Dickson
Meadow potentially posed. At public hearings to consider TCB’s comprehensive permit
application and in correspondences from abutters to town officials,14 community members
opposed to the plan encouraged the Board of Selectmen to reduce the number of units from
18 to a 12- or 13-unit development.15 Reducing the number of units, these community
members argued, would address several problems, including their concerns over road
safety, open space, and the layout of the development. In all written records throughout the
process, neighbors supported the development of six affordable housing units at the site.
TCB, in turn, defended the need for 18 total units and 12 market rate units for Dickson
Meadow in order to maintain the project’s economic viability: fewer market rate units
would yield an insufficient subsidy to support six affordable units.16
Neighbors encouraged town officials to encourage the town to buy the Dickson’s 10.8
acres so that Weston-- rather than TCB-- could oversee the development of a smaller
mixed income development on the property.17 About ten Highland Street area neighbors
organized themselves and their lawyers around this initiative. These neighbors argued
Weston’s right to purchase the land that the Dicksons were offering to TCB under MGL
Chapter 61A, which states that a city or town has the right to purchase a land parcel that
is changed from agricultural to residential land-tax status—as the Dicksons had recently
done with this parcel—within 120 days of that transfer. One neighbor, Richard Harrison,
acted independently to create a new nonprofit, WCAH, Inc., to which he hoped the town
would turn over development rights, so that WCAH could implement its plan for only a 12
unit development for the site. Harrison temporarily delayed Weston’s Board of Selectmen
from rejecting the town’s option to buy the land via a temporary restraining order from
Middlesex County Superior Court that suspended the Town’s authority to decide on the
matter. Within a week, however, a Superior Court Judge denied an injunction that would
have stalled the development process further.18 When Weston did not purchase the land,
Harrison offered $1 million to TCB or any other developer who would adopt WCAH’s12unit plan for Dickson Meadow.19
The town did not move to purchase the land, as some neighbors had hoped it would,
because it recognized that TCB’s Dickson Meadow plan was the most immediate and least
expensive way for Weston to gain mixed-income housing. “The town saw The Community
Builders’ proposal for Dickson Meadow as being in its best interest,” said Nichols. “I think
it’s fair to say that the Board of Selectmen felt that this was a good use of that land. We knew
we needed affordable housing in town and this seemed like a sort of wonderful way to get
it, because the land was being donated.”20
Open Space
Relating to the density concern, neighbors claimed that Dickson Meadow would destroy
beloved open space. A plan that pared down the number of units for the development
would leave more open space at the site, opponents argued. As Kenneth Fish, a member
of the Dickson’s Advisory Committee, described the land before it was developed, “It was
a beautiful meadow, surrounded by trees. It was used for growing hay but was otherwise
undeveloped.” Complaints about development arose because, “the neighbors were going to
miss it.”21 Larry Gerber, another Weston resident and former head of the town’s Housing
Needs Committee explained, “Highland and the surrounding streets are among the most
54
ON THE GROUND: 40B Controversies Before and After
desirable in Weston, because of the scenic open space there. Though most of this space was
owned by the Dicksons the neighbors wanted to preserve that open space.”22 Many in town,
Gerber observed, believed that at least one of the neighbors who had led the opposition
to Dickson Meadows had built a huge mansion next to that empty piece of the Dicksons’
property, feeling that this abutting land should remain undeveloped. The problem was, of
course that, “no one guaranteed land near his property would never be developed. It wasn’t
conservation land; it was owned by the Dicksons.”23
Site Plan, Architecture, and Impact on Surrounding Properties
Opponents were concerned that the turning radius and grade of Dickson Meadow’s road,
as originally proposed by TCB, would be unsafe. TCB’s engineer defended the safety of
the planned road, while opponents argued that reducing Dickson Meadow’s density would
allow for a safer design for the development’s looping road, Livermore Lane.
Concerns about the septic system that TCB originally proposed for Dickson Meadow were
cited by the Town Board of Health and neighbors who worried the system’s capacity would
be inadequate and that it was too close to the development’s property line.24 Opposing
neighbors hired an engineer to test soil percolation at the development site. Their engineer
expressed concern that Dickson Meadow could encounter storm water drainage problems,
where TCB’s engineer did not identify this as a problem after repeated tests.25
Neighbors were also concerned about the quality of the buildings and landscaping at
Dickson Meadow. Besty Nichols, a former Weston Selectman who served as the Board of
All of the
concerns
raised by
opposing
neighbors
were centered
around the
issue of
density.
Photo credit: Google Earth
ON THE GROUND: 40B Controversies Before and After 55
Photo credit: Alexandra DeGenova
Selectmen’s advisor to the Dickson Meadow development team, explained that some town
residents feared for their property values because they perceived that affordable units might
make Dickson Meadow prone to poor quality or unattractive construction. “The fact that
it was a mixed income development led to concerns about maintenance and how it would
affect property values. Property values are a big deal in this town since people put so much
money into their homes.”26
In its final decision to approve The Community Builders’ comprehensive permit application,
the Weston Board of Appeals summed up the arguments for and against the Dickson
Meadow proposal.27 While reducing the number of homes at Dickson Meadow, “might
be financially feasible and would have a less disruptive impact on the area and mitigate
health and safety and environmental concerns strongly expressed by opponents,” the Board
contended, it also acknowledge that it was “faced with impressive legal constraints against
its [the Board’s] right to redesign or substantially modify the proposed project in view of
many countervailing considerations.”28 These constraints included: providing the developers
a “margin for risk,” maintaining costs high enough to build well-constructed and landscaped
homes, maintaining enough units to proportionally distribute condo fees across all units,
and wanting to encourage the creation of moderate-rate homes within the development.29
The Board thereby granted a comprehensive permit for Dickson Meadow to The
Community Builders based on terms and conditions set forth in the developers’ application
and subsequent supplementary documentation.30 The decision included twelve conditions
set forth by the Board, but these did not appear to require substantial changes to the plan
outlined in The Community Builders’ application.31
On the Ground: After
Neighbors’ main concerns about Dickson Meadow during its proposal stages focused on
density and open space, TCB’s site plan and the architecture of its proposed buildings. The
56
ON THE GROUND: 40B Controversies Before and After
negative impacts that neighbors feared would result were not realized at Dickson Meadow,
aside from the reality that the development did create a denser collection of homes
than what previously existed in the neighborhood and on the previously empty site. This
however, did not harm the community, as Weston residents have recognized.
Many of the key players involved in Dickson Meadow’s development, including town
government officials, development advisors, and Dickson Meadow residents, agree that
since Dickson Meadow opened, the dissent that some neighbors expressed during the
planning stages has disappeared. “It’s been accepted, I would say, as an existing part of the
town,” said Dickson, who still lives adjacent to Dickson Meadow.32 Gerber agreed, “Anyone
I’ve ever run into in town has liked living at Dickson Meadow. There was no subsequent
controversy that I know of.”33 Sally Locke who, with her husband, bought the first home at
Dickson Meadow said, “My husband and I followed it in the newspapers during the building
stages when it was very controversial. Now that it is built and blended into surroundings
and environment, I don’t sense any hostility.”34 According to Donna VanderClock, the
Weston Town Manager, the only complaints the Town hears regarding Dickson Meadow are
residents calling to question disproportionate condo fees and income eligibility standards
for affordable residents. “Nobody has called about concerns that were raised about the
development before it was constructed.”35
Density
The Comprehensive Permit allowed TCB to create the 18-unit development that it sought
in its permit proposal. With this permit, Weston’s Board of Appeals allowed the developer
to increase density normally permitted for this area of town to 1.8 units per acre, with lot
sizes measuring 37,800 sq. ft.36 Fourteen of the homes were built as detached structures.
Livermore Lane
today. Curve that
some considered
“dangerous” in
original site plan
has not caused
known problems.
Photo credit: Alexandra DeGenova
ON THE GROUND: 40B Controversies Before and After 57
The remaining homes were built as two-family structures attached by garage to minimize
overall density.37
Open Space
To meet the objective of preserving open space, Dickson Meadow’s homes were built in a
ring around 2.5 acres of the existing meadow. That encircled land has been permanently
preserved as open space thanks to a town conservation covenant.38 TCB addressed some
of opponents’ open space concerns in the final Dickson Meadow site plan, which left 82.5
percent of the land tract (8.25 acres) undeveloped. Buildings now account for just 7.5
percent (0.75 acres) of Dickson Meadow; while parking and pavement cover the remaining
10 percent (approximately one acre) of the site.39
Site Plan, Architecture, and Impact on Surrounding Properties
According to Alan Slawsby of Slawsby and Associates, the management company that
maintains Dickson Meadow, “There really have been few operational challenges. There were
some minor punch list items for homes which the developer, by and large, completed.”40
Summary of Controversies and Outcomes
Controversy
Concern
Outcome
Density
• Too many units for land area
• 18 units built on 10.8 acres, as
proposed
• No direct negative impacts
found
Open Space
• Development would destroy
open space that should be
preserved
• Homes replaced some open
space
• 2.5 acres of development site
preserved as conservation land
Site Plan, Architecture,
and Impact on
Surrounding Land
• Unsafe road design
• Inadequate septic and drainage
systems
• Risk of poor quality or
unattractive construction and
landscaping
• Development would not fit into
the neighborhood
• Problems with development or
unappealing aesthetics could
lessen surrounding property
values
• No reported problems with
road design, septic and drainage
systems, building construction
or landscaping
• Town residents report the
development fitting into its
surroundings
• No known impact on
surrounding property values
Figure 16:Weston Controversy Summary
58
ON THE GROUND: 40B Controversies Before and After
In its decision to approve a comprehensive permit for Dickson Meadow, the Weston Board
of Appeals acknowledged that, “the private roadway, while curved and undulating has been
modified to a degree that should be less hazardous than many in town.”41 In an updated
plan submitted before the Board came to its decision, TCB amended the road grade. The
Board upheld this version of the roadway plan in its permit approval decision. These changes
alleviated the problem and there has been no evidence of continued concerns.
When asked about any reported building problems at Dickson Meadow since residents
have moved in, VanderClock, replied, “I think everything’s okay there physically. We had a
quality developer, so there have been no structural problems. The infrastructure was solid.
We have had problems with the septic system in another development; but not at Dickson
Meadow.”42 Of the septic system, Locke noted, “occasionally we have troubles with the
septic pump, but other than that, Dickson works pretty smoothly.”43 Adequate capacity
and the positioning of the septic field too close to adjacent properties- rather than the
functioning of the pump- were opponents’ worries for the septic system at Dickson. Thus,
it can be said that pre-development concerns about the septic system at the development
were not realized once it was built. There is also no evidence of drainage problems as
the development site. Any problems or concerns over these two systems may have been
alleviated through conditions that the Appeals Board placed on the permit and that TCB
implemented to ensure that the systems meet all local and state government health and
safety requirements.44
The increase
of affordable
units in the
community
has increased
town residents’
awareness of the
need for more
affordable units
and the need
for Weston to
contribute.
Where some neighbors had raised concerns over the aesthetics of the development and
the quality of what would be built there during the development process, Locke sees no
cause for such concerns these days. “It’s a very well thought out community. The houses
are very well constructed and the landscaping was intended to be well done. As money
became tighter at the end of construction, the landscaping became a bit more sparse, but
it still looks nice.”45 To help Dickson Meadow fit into its surrounding neighborhood, the
site and landscaping plans for the site called for the preservation of as many trees and
stonewalls as possible.46 “Since it’s been built, many people, including some who opposed
it, have told me, ‘Oh, but it looks so nice,’” said Dickson.47 Alluding to some Weston
residents’ misconceptions of what a mixed-income development would look like, Nichols
added, “When you hear ‘mixed income’ facility, you don’t necessarily think it’s going to
look as nice as Dixon Meadow.”48 Many who were involved in the planning of Dickson
Meadow underscored the choice of a reputable architect for the Dickson Meadow homes,
when interviewed. “We went with Acorn as the architects. Part of why we chose them was
because they were well known for setting the houses in conformity with the terrain. We
were very impressed with their architect. And if you drive by you think, ‘That looks alright.’
I would say physically it has not been a problem,” explained Dickson.49
Supporters of the original Dickson Meadow proposal suggested that opposing neighbors had
underlying fears that it would reduce their property values. The Board of Appeals’ decision
also acknowledges the existence of these fears in referencing the potential “negative impact
on surrounding properties.” Though it is impossible to know how the value of properties
neighboring Dickson Meadow may have risen or fallen if the development had not been
built, a general upward trend in property assessment values for homes closest to Dickson
from the year that Dickson opened until recently mirrors the increased trend in property
values throughout Weston during the 2000s.50 This may indicate that the construction of
ON THE GROUND: 40B Controversies Before and After 59
Dickson Meadow did not devalue property in the surrounding neighborhood.51 Dickson
and Nichols both echoed this finding, attesting that there hasn’t been any reduction in
property values in the neighborhood since the development was completed.52
Conclusion
The most evident effect that Dickson Meadow has had on Weston is that it increased the
town’s affordable housing stock by six units, its moderate-rate units by two, and its marketrate condominiums by six. But those closest to the development insist that it has had other
effects on the Weston community. Dickson said she has seen a direct connection between
Dickson Meadow and the housing constructed in Weston under Chapter 40B since. “I think
the main impact was that affordable housing became a household term in Weston, which
it had not been before,” she said. “This is partly because of what we were doing and partly
because of what was going on in the wider, greater Boston community.”53 For Locke,
Dickson Meadow has made Weston residents, “a little more aware that there are people who
need homes at a reduced price.” And the increase in affordable units in the community, has
increased town residents’ awareness of the need for more affordable units and the need for
Weston to contribute, she believes.54 Also important, Locke stressed, is the role Dickson
Meadow played in the way that Weston residents perceive affordable and moderate rate
housing. “People realize that we all keep our homes looking nice and that we are good
neighbors,” Locke said of neighbors’ opinion of Dickson Meadow’s residents.55
Several interviewees highlighted the increase in moderate-income housing that Dickson
Meadow provided the town as an important outcome of this development on the
community. “People couldn’t buy into Weston for what single homes cost at market value.
In these types of developments, we were providing housing that served a need, separate
from the affordable housing component,”56 explained Gerber.
While not necessarily a direct result of the construction of Dickson Meadow, a much larger,
mixed-income development located next to Dickson Meadow is currently in the final stages
of development. Highland Meadow will feature 70- homeownership development including
seven affordable units. Some Weston residents that we spoke to alluded to the possibility
that, because Dickson Meadow fit into the community so well, it may have made it easier
for new affordable and mixed-income developments, such as this one, to succeed in Weston.
Highland Meadow and other affordable housing proposals, in addition to the creation of
the Weston Affordable Housing Partnership, indicate that the Town of Weston is proactively
planning to increase its stock of affordable housing. This may be a result of lessons learned
from Dickson Meadow.
Endnotes
1 Town
2 Town
of Weston, “About Weston” (accessed April 24, 2009)
of Weston, Housing Department, “Brook School Apartments” (accessed April 10,
2009)
3 The Community Builders, Inc. to Massachusetts Department of Housing and Community
Development, Application for Local Initiative Program Dickson Meadow Affordable
Housing. Town of Weston
4 The Community Builders, Inc. Application for Local Initiative Program
60
ON THE GROUND: 40B Controversies Before and After
Ibid
Ibid
7 Ibid
8 Massachusetts Department of Housing and Community Development, “Local Initiative
Program (LIP)”
9 The Community Builders, Inc. Application for Local Initiative Program
10 Ibid
11 Ibid
12 Polly Dickson, interview by the authors, March 26, 2009
13 Highland Area Neighborhood Association to The Board of Selectmen and the Town of
Weston, “Open Letter”
14 Weston Board of Appeals public meetings on January 14, 1999; February 4, 1999; and
February 24, 1999.
15 Highland Area Neighborhood Association to The Board of Selectmen, “Open Letter”
16 The Community Builders, Inc. to Zoning Board of Appeals, Town of Weston.
Supplementary Information to Comprehensive Permit Application. Dickson Meadow. Town
of Weston, 7
17 Regan, “Judge Lifts Order”
18 Ibid
19 Regan, “Dickson Decision Next Week”
20 Betsy Nichols, interview by the authors, March 26, 2009
21 Ken Fish, interview by the authors, March 17, 2009
22 Larry Gerber, interview by the authors, March 27, 2009
23 Ibid
24 The Community Builders, Inc. to Zoning Board of Appeals, Town of Weston, “Design
Issues Memorandum”
25 The Community Builders, Inc. to Zoning Board of Appeals, Town of Weston,
Supplementary Information to the Comprehensive Permit Application
26 Nichols, interview by the authors
27 Town of Weston Board of Appeals, “Dickson Meadow Comprehensive Permit Decision”
28 Ibid
29 Ibid
30 Ibid
31 Goodison, “Controversial Weston Affordable Housing Plan Is Approved”
32 Dickson, interview by the authors
33 Gerber, interview by the authors
34 Sally Locke, interview by the authors, March 26, 2009
35 Donna VanderClock, interview by the authors, March 27, 2009
36 The Community Builders, Inc. Application for Local Initiative Program
37 Ibid
38 Ibid
39 Ibid
40 Alan Slawsby, questionnaire prepared by the authors, email and fax correspondence,
March 31, 2009
41 Town of Weston Board of Appeals, “Dickson Meadow Comprehensive Permit Decision”
42 VanderClock, interview by the authors
43 Locke, interview by the authors
44 Town of Weston Board of Appeals, “Dickson Meadow Comprehensive Permit Decision”
45 Locke, interview by the authors
5
6
ON THE GROUND: 40B Controversies Before and After 61
46 The
Community Builders. Inc. Application for Local Initiative Program
Dickson, interview by the authors
48 Nichols, interview by the authors
49 Dickson, interview by the authors
50 Town of Weston Assessors’ Office staff, conversation with the author, April 2009
51 Town of Weston, Assessors’ Office, Assessment Records for Properties on the
Comprehensive Permit Application for Dickson Meadow’s List of Certified Abutters,
Assessors’ database
52 Nichols, interview by the authors
53 Dickson, interview by the authors
54 Locke, interview by the authors
55 Ibid
56 Gerber, interview by the authors
47
62
ON THE GROUND: 40B Controversies Before and After
Chapter 8
Conclusion
Each 40B project is unique. There are differences in tenure, scale, residential
composition, socio-economic demographics and, of course, differences in the
communities in which they are located. Many 40B projects are proposed and developed
without controversy, while others are met with opposition and fear. In this report, we
have studied four different projects that demonstrated clear opposition and controversy.
The concerns that were raised varied for each project, but the roots of the controversy
involved fears about the loss of local control over zoning and unknown impacts of the
proposed development. Of course, the heart of the Comprehensive Permit Law involves
the ability of the state to override local zoning. In fact, proponents argue that this is
the very reason why the law has been successful in creating more than 26,000 units of
affordable housing during its 40 years.
Despite the law’s success, controversies around 40B continue to arise. Municipal
governments want to be able to plan for and manage their own growth. Among their
tools is the ability to enact and enforce local zoning laws. Private citizens choose a place
to live based on their perceptions of neighborhood character, aesthetics, home values,
accessibility, quality of schools, safety and a number of other qualities. They expect
that their neighborhood will retain these qualities and that they will be protected from
unwanted uses, based on existing zoning. When a state is in a position to remove control
over land use decisions from the locality, there is sometimes controversy and organized
opposition. This significant power of the state may stimulate an overstatement of the
concerns and fears by the opposition. At the same time, proponents point out that
municipalities have had 40 years, since the enactment of 40B, to increase their stock of
affordable housing on their own terms.
ON THE GROUND: 40B Controversies Before and After 63
This study
provides
significant
evidence that
the fears of new
affordable housing
development are
far more myth
than reality.
For this study, four sites were selected using a mixed methodology, where a number of
filters were applied to a set of developments monitored by the Client and another set
of developments compiled by the researchers from other sources. Through interviews
with key stakeholders and archival research, this study has found that the fears and
concerns expressed during the permitting process of four highly controversial 40B
developments have not been realized. This was true of both of the two sites selected from
the Client list (Walpole and Weston) and those selected from other sources (Newton
and Wellesley).Nearly all of the controversy has evaporated now that the developments
have been completed and occupied. A partial explanation for this result may be that the
heightened fears and opposition during the permitting process led to negotiations and
concessions between the municipalities and the developers that resulted in improved
developments. For example, the Wellesley ZBA required improvements and mitigation
to potential environmental, drainage and traffic impacts. Also, the Newton ZBA granted
a comprehensive permit with conditions to monitor the engineering, landscaping and
contracting decisions of the developer. In the Walpole case, many of the fears raised by the
town such as impacts on school enrollments, and sewer and water capacity issues involved
services that every municipality is legally obligated to provide. But here too, the concerns
about undue costs were overstated and only minimally realized.
Moreover, there is evidence that the experience of the 40B process has yielded some
other benefits to the municipalities in addition to the increase in affordable housing. In
three of the four locales studied in this report there is significant evidence that, as a result
of the controversial 40B developments, the communities are more aware of the need
for affordable housing and are being more proactive in planning for and developing that
housing. In the last ten years, the City of Newton’s Subsidized Housing Inventory has risen
from 4.9 to 7.6 percent, and the Town of Walpole’s has increased from just below 2 to 5.7
percent. Walpole has also created a Housing Production Plan and it has been approved and
certified by the DHCD through 2013. In Weston, the Town has established an Affordable
Housing Partnership to involve town officials from several departments in increasing
Weston’s affordable housing units. The more proactive stances in these three communities
may lead both to more affordable housing units, as well as to the more managed growth
and the local control that the cities and towns desire. This may result in better working
relationships with developers, city and town government officials, and with community
residents and groups, to bring more positive outcomes and less controversy to the
affordable housing production process. As communities gain experience with developing
40B housing, hopefully the level of controversy will diminish. This study provides
significant evidence that the fears of new affordable housing development are far more myth
than reality.
64
ON THE GROUND: 40B Controversies Before and After
ON THE GROUND: 40B Controversies Before and After 65
66
ON THE GROUND: 40B Controversies Before and After
Appendix A
Housing Appeals
Committee Review
The Housing Appeals Committee is a body consisting of five members who hear and rule
on disputes involving Chapter 40B, the Massachusetts Comprehensive Permit Law. Its
mission is “to provide, within the parameters of the comprehensive permit process [. . .],
an impartial forum to resolve conflicts arising from the siting of affordable housing.” This
mission is carried out while attempting to balance the need for affordable housing and
“legitimate local concerns – planning, environmental, open space, design, health, safety,
and other local concerns.”1 Per the Comprehensive Permit Law, a local zoning board of
appeals (ZBA) can grant a comprehensive permit that overrides existing town zoning and
other local regulations. If the ZBA denies the comprehensive permit or imposes conditions
that “make the proposal uneconomic,” a qualified developer can appeal the decision to the
Housing Appeals Committee. A qualified developer is “any developer of housing approved
under an eligible state or federal housing program who has been denied a comprehensive
permit by a Zoning Board of Appeals in a city or town with less than10% of its housing
units affordable to low or moderate income persons.”2 Once a city or town meets the 10%
threshold (as measured through the Subsidized Housing Inventory, a listing maintained by
the Massachusetts DHCD), the municipality is said to “have met ‘local needs’ for affordable
housing and has the right to deny applications by developers to obtain Chapter 40B
comprehensive permits.”3
See Figure 17 for a graphic representation of possible paths comprehensive permit
applications can take.
Comprehensive Permitting Process
Figure 17: HAC Process
ON THE GROUND: 40B Controversies Before and After 67
68
ON THE GROUND: 40B Controversies Before and After
Appendix B
Literature Review
Much research has been done to evaluate and to criticize Chapter 40B as a mechanism for
expanding the availability of affordable housing and to assess it impact on specific issues or
controversies (including property values and municipal services). In his mostly favorable
assessment, Paul Stockman asserts that with its 10% threshold for HAC override immunity,
Chapter 40B “implicitly sacrifices a full attainment of the regional housing need [. . .]
but it serves as an effective vehicle for achieving reasonable and stable levels of suburban
heterogeneity.”4 Stockman maintains that the Massachusetts zoning appeals system takes
local concerns into account, almost to a fault; and that localities have many opportunities
“to ensure that legitimate planning considerations are addressed and resolved.”5
Stockman also suggests a number of possible revisions to MGL Chapter 40B. These include:
(1) guarding against the construction of elderly housing at the expense of family housing;
(2) needing to safeguard the zoning appeals system from procedural delays; (3) constraining
localities’ ability to create delays; (4) integrating future state environmental laws into
the process, and (5) strongly discouraging appeals to the courts from HAC decisions.6
Subsequent studies addressed many of these concerns.
On the occasion of its thirtieth anniversary, Sharon Krefetz presented a much more critical
assessment of the Comprehensive Permit Law. In Krefetz’s estimation, “Chapter 40B has
not produced anywhere near the amount of affordable housing that is needed, nor has it
overcome all the obstacles to ‘opening up the suburbs.’ It has created small toeholds, but
the walls of suburban exclusion remain high.”7 The author divided the history of Chapter
40B into four distinct periods: an initial period of turbulence (1970-1979), a period of
relative calm (1980-1984), years of increased activity (1985-1989) spurred by the passage
of Executive Order 215,8 and an era of local reassertion of influence (1990-1999).9 In
so doing, Krefetz highlights key changes to local responses, state actions, and the types of
projects that tend to be built. Included among these changes are: (1) the shift from elderly
housing to multifamily housing, due to changing demographics and the framing of a housing
crisis in terms of a lack of family housing in the 1980s;10 (2) the decrease in ZBA denials of
comprehensive permit applications and the decrease in HAC decisions overruling the ZBA
because of increasing collaboration and accommodation between developers and ZBAs; and
(3) a decrease in the size of projects proposed and built, as a result of the increased active
involvement of city officials in proposals for affordable housing in their municipalities.11
Krefetz concludes that “state and federal actions and funding programs need to be
expanded, including more direct subsidies for the construction of low-income housing and
offsetting funds for services.”12 As long as few low-income people live in certain localities
and are unable to exert political pressure on local governments to create affordable housing,
and as long as local property taxes subsidize the creation of housing, infrastructure and
services, the need for low- and moderate-income housing will not be fully met.13 The best
laid plan for the construction of affordable housing are only as effective as financial and
ON THE GROUND: 40B Controversies Before and After 69
economic realities allow. Pockets of opposition will persist; and where political will and
economic feasibility allow, affordable housing projects will continue to be approved.
In their “Mixed Income Housing in the Suburbs: Lessons from Massachusetts,” Gornstein
and Verrilli hail a number of regulatory changes made to Chapter 40B for giving
communities tools and reasons to proactively plan for and encourage new affordable
housing development. These changes include the 1998 HAC ruling that qualified the
Federal Home Loan Bank of Boston’s New England Fund (NEF) program as 40B-eligible
funding.14 DHCD also responded with new regulations in 2001 and 2002 that gave
increased power to municipalities in the face of increasing numbers of 40B applications by:
• Eliminating the right of developers to appeal decisions on very large projects;
• Providing time-limited exemptions from ZBA decision appeals for towns that have
increased housing by a significant amount in the last 12 months; and
• Creating a monitoring process for projects using NEF and other non-governmental
funding that imposed income limits and allowed local preference for 70% of
occupants.15
However, the authors maintain that these changes “do not remove the biases of fiscal
zoning.”16 In approaching development with a myopic view toward “the net fiscal impacts
of development today, [communities tend] to encourage mixed income non-family housing
- especially elderly and age-restricted (55+) developments.”17 In practice, Massachusetts
municipalities have constrained the extent to which mixed-income development reduced
concentrations of poverty with higher income targeting, increased use of local preferences
and the exclusion of families.18
In 2003, Governor Mitt Romney appointed a Chapter 40B Task Force to address the
opposing factions of affordable housing advocates who support Chapter 40B and opponents
who argue that it impedes a municipality’s ability to control its own growth.19 The task
force made a number of recommendations, including:
• Counting affordable units in homeownership developments twice when calculating the
subsidized housing inventory in order to remove inequity in counting while preserving
the incentive to create rental housing;
• Studying further the prospect of counting manufactured housing (mobile homes) in the
SHI, though the authors do not endorse adopting this approach;
• Allowing the municipality to submit written complaints to the subsidizing agency to be
answered by the applicant; and
• Requiring the Department of Housing and Community Development to update the SHI
at the request of the city or town (this was eventually enacted).20
Regnante and Haverty maintain that if the recommendations were adopted, they could “give
municipalities a greater ability to plan for the creation of affordable housing [while giving
developers] a better idea where and when an affordable housing development would be
appropriate.”21
Fears of decreases in property values are of particular concern to abutters in Chapter 40B
developments. A study conducted by MIT researchers concluded that, “large-scale, highdensity 40B multi-family rental developments in single family neighborhoods [do] not affect
the value of adjacent homes.”22 In addressing the effects of affordable housing on market
values of nearby homes, George C. Galster posits that the impacts “depend in an interactive
70
ON THE GROUND: 40B Controversies Before and After
way on concentration, context, and type of development.”23 Concentration matters least
when affordable housing is “inserted into high-value, low-poverty, stable neighborhoods,”
and the construction and rehabilitation of affordable units can have positive impacts, just as
long as an area does not succumb to too much concentration and “a diminishing marginal
positive impact” as can be the case with large rental complexes.24 Neighborhoods with
“modest values, nontrivial poverty rates, and owner perceptions of vulnerability” tend to
experience smaller positive impacts and run the risk of experiencing negative impacts.25
Additionally, while owner occupied affordable developments provide more positive impacts
than rental units, developments which “remove (through rehabilitation or construction) a
preexisting source of negative externalities likely generate more positive impacts than those
developed on vacant land.”26
Nakosteen and Palma claim that population growth associated with new housing does
not necessarily yield increases in demand for services or higher municipal costs.27 The
fact that municipal costs tend to increase regardless of growth suggests “that the standard
models relied upon by cities and towns to estimate the fiscal impacts of development may
be systematically overestimating these costs in many communities.28 The authors suggest
that their results might even show that growth saves money “by slowing down per capita
increases in costs.”29 However, they also suggest that “growth squeezes municipal budgets
and makes certain mandated expenditure areas, such as education, take precedence over
others, such as public works.”30 Nakosteen and Palma suggest an alternative approach (the
marginal-cost method) to forecast the fiscal impacts of housing developments.31
In a 2007 study, Nakajima et al. employ the marginal cost method, the per capita
multiplier method and an original methodology (the fair share method) to understand
the fiscal impacts of mixed-income affordable housing. The fair share method compares
the distribution of residential property taxes to the average cost of municipal services
per housing unit. Through the study of eight home ownership housing developments,
the authors found that none had measurably negative impacts on public services in their
respective municipalities. Also, Nakajima et al. suggest that since school costs are rising
even in places with declining enrollments, other factors are at play in boosting these costs.
Finally, through the use of the fair share methodology, the authors find that mixed-income
units (including 40B projects) have fiscal impacts the same as surrounding properties.32
The authors of On the Ground hope to add it to the canon of works on Chapter 40B, its
impacts and its effects. This report is positioned well to respond to some of the questions
Krefetz posed on the occasion of the Comprehensive Permit Law’s 30th anniversary: what
are the effects that 40B projects have had on communities in which they have been built;
how have the attitudes of community residents changed, especially those who were initially
opposed; and have property values, local school or town budgets been greatly impacted?33
It is these issues, and other initial community concerns and current perceptions of 40B
projects that On the Ground addresses.
ON THE GROUND: 40B Controversies Before and After 71
72
ON THE GROUND: 40B Controversies Before and After
Appendix C
Further Research
This study, raised several questions and topics for topics for further research. These include:
• Do controversial 40B projects tend to have more conditions placed on their permits and
more negotiations between ZBAs and developers than do non-controversial projects?
And if so, what is the nature of the conditions and negotiations?
• How do projects constructed under the Local Initiative Program (LIP) compare to
other 40B developments? Are there still cases of abutter opposition, and if so, how do
municipalities balance the concerns of their residents while collaborating with DHCD
and the developer?
• This study has concluded that three of the four cases appear to recognize the need for
affordable housing in their communities and have become more proactive in planning
for that housing. A potential topic of research could be a study of the communities
that currently have Housing Production Plans (HPP) certified by the DHCD. What is
the history of 40B development in these communities? Have they always been more
proactive in creating affordable housing? Or has the experience of highly controversial
40B developments spurred the community into developing an HPP?
• How does the SHI 10% threshold (and subsequent immunity to zoning overrides)
motivate the development of affordable housing? As towns approach the SHI threshold,
are they more likely to approve comprehensive permit applications in the hopes of
attaining that goal? Or are many of the common controversies still evident in the
proposals brought before the ZBAs?
• A comparative study of market rate and affordable units within the same 40B
development. What sort of community dynamics result from stark disparities in
condominium fees, home purchase values or monthly rent or wide ranges in income
levels within these developments?
ON THE GROUND: 40B Controversies Before and After 73
74
ON THE GROUND: 40B Controversies Before and After
Appendix D
List of Interviewees
The case studies detailed in this report relied heavily on information provided by key
players in each development. Below is a list of individuals interviewed for each case study.
A number of subjects chose not to be identified in this report and, therefore, are not listed.
Walpole – The Preserve
Michael Boynton
Donald Johnson
Jon Rockwood
Michael Stanton
Newton – The Kayla’s House Development
Eileen Freiberg-Dale
Trisha Kenyon
Michael Kruse
Josephine McNeil
Jason Rosenberg
Amy Yuhasz
Wellesley – Hastings Village
Stanley Brooks
Rick Brown
Robert Engler
Karen Fromm
Meghan Jop
Weston – Dickson Meadow
Polly Dickson
Kenneth Fish
Larry Gerber
Edward Lashman
Sally Locke
Betsy Nichols
Alan Slawsby
Donna VanderClock
ON THE GROUND: 40B Controversies Before and After 75
Endnotes
1 Massachusetts Department of Housing and Community Development (DHCD), “Housing Appeals
Committee.”
2 Massachusetts DHCD, “Housing Appeals Committee,” DHCD Fact Sheets.
3 Fisher, “Chapter 40B Permitting and Litigation.”
4 Stockman, “Anti-Snob Zoning in Massachusetts: Assessing One Attempt at Opening the Suburbs to
Affordable Housing.” Stockman refers to Massachusetts General Law, Chapter 40B, Sections 20-23
as the “Low and Moderate Income Housing Act of 1969.”
5 Ibid, 569.
6 Ibid, 577-9.
7 Krefetz, “The Impact and Evolution of the Massachusetts Comprehensive Permit and Zoning
Appeals Act: Thirty Years of Experience with a State Legislative Effort to Overcome Exclusionary
Zoning,” 415.
8 Massachusetts DHCD, “Affirmative Fair Housing Policy” (accessed April 21, 2009). Signed on
March 15, 1982 by Governor King, Executive Order 215 “established that state agencies were not
award development-related discretionary funds to cities or towns determined to be unreasonably
restrictive of new housing growth.”
9 Krefetz, 400.
10 Ibid, 405.
11 Ibid, 402.
12 Ibid, 416.
13 Ibid, 415.
14 Gornstein and Verrilli, “Mixed Income Housing in the Suburbs: Lessons from Massachusetts.”
The NEF program was controversial in that it could be used for homeownership units, but did not
required authorization from local authorities. Developers jumped at the opportunity to develop
more lucrative homeownership units at a time when the housing market was booming. This
brought on a significant boost in the number of 40B applications, and prompted the DHCD to take
subsequent action with additional regulations in 2001 and 2002.
15 Ibid, 21. The time-limited exemptions applied to those towns that increased the subsidized
housing supply by 2% of total housing units or by 0.75% of the subsidized housing inventory (SHI)
count with a state-approved production plan.
16 Ibid, 22.
17 Ibid, 22.
18 Ibid, 34-5.
19 Regnante and Haverty, “Compelling Reasons Why the Legislature Should Resist the Call to
Repeal Chapter 40B.”
20 Ibid, 86-88. Regarding the first recommendation, only affordable units in a homeownership
developer count toward the SHI count, whereas all units in an apartment complex, whether they
are market rate or affordable, count toward the SHI count. This proposed change would “level the
playing field” between rental and homeowner unit development while retaining an incentive for
producing rental units.
21 Ibid, 89.
22 Ritchay and Weinrobe, “Fear and Loathing in Massachusetts: Chapter 40B, Community
Opposition and Residential Property Value,” 3-4.
23 Galster, 199.
24 Ibid, 200.
25 Ibid.
26 Ibid.
27 Nakosteen and Palma, “The Fiscal Impact of New Housing Development in Massachusetts: A
Critical Analysis,” 18.
76
ON THE GROUND: 40B Controversies Before and After
Ibid, 19.
Ibid, 19.
30 Ibid, 19.
31 It should be noted that Chapter 40S provides state funding to cities and towns that establish a
40R district (a special zoning overlay district that incorporates Smart Growth) to cover the costs of
school-aged children who move into these districts. See DHCD, “Chapter 40S,”
32 Nakajima, Modzelewski and Dale, “The Fiscal Impact of Mixed-Income Housing Developments
on Massachusetts Municipalities.”
33 Krefetz, 417.
28
29
ON THE GROUND: 40B Controversies Before and After 77
78
ON THE GROUND: 40B Controversies Before and After
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